100 N.W. 258 | N.D. | 1904
The plaintiff sues to recover damages for the breach of a written contract to sell and convey 160 acres of land situated in Grand Forks county. The contract in question was executed by the defendant as agent of the owner, and in her name, but wholly without her authority. The trial was to the court without a jury. Plaintiff was awarded damages in the sum of $3,142.29. The defendant has appealed from the judgment, and demands a review of the entire case in this court.
The defendant admits that he had no authority from the owner to execute the contract in question, and “that at some time he was liable to the plaintiff for this assumption of authority,” but claims that whatever cause of action arose in plaintiff’s favor for the injury sustained by reason of his assumption of authority is barred by the statute of limitations. The applicability, as well as the sufficiency, of this defense depends entirely upon the character of the defendant’s liability and the nature of the plaintiff’s cause of action. The questions of fact which are in issue are fully covered by the findings of fact, and the latter are, in our opinion, amply sustained by the evidence. So far as material to a consideration of the questions of law involved, they may be stated as follows: On April 20, 1891, and until the 4th day of March, 1902, one Eugenia A. Tinker, a resident of the state of Connecticut, was the owner of the land in question. On the first-named date, to wit, April 20, 1901, the defendant, Anthony Stonehouse, a resident of Larimore, in the county of Grand Forks, executed and delivered to the plaintiff
There has been much diversity of judicial opinion as to the character of the liability of one who, without authority, executes a contract in the name of an alleged principal. Three forms of remedy have been recognized by the courts as available to the other party to the contract, each, being based upon a distinction in the nature of the liability: (1) An action against the agent upon the contract, as principal in the contract; (2) an action against the agent for damages for the breach of his warranty of authority to execute the contract; and (3) an action for deceit, where the agent has acted in bad faith in his assumption of authority. As we have seen, the trial court placed its judgment upon the first ground. It is conceded that the complaint is broad enough in its allegations to authorize a recovery upon any one of the three grounds, if they are available; and it will be conceded that, if the present action is maintainable upon the first ground (that is, upon the contract against the defendant as principal therein), the statute of limitations is not applicable, for there was no breach of the contract until the owner of the land, the alleged principal in the contract, refused to execute the deed, when, according to the terms of the contract, it was due, in the fall of 1901. In that event the judgment is not assailable. Counsel for defendant contends1 (1) that, under the great weight of modern authority, the remedy by an action upon the contract is no longer available; and (2) that the party injured is limited to one of the other two remedies — that is, to an action for damages for the breach of warranty of authority, or to an action for deceit — and that as to either the cause of action arose when the defendant signed
Inasmuch as we are agreed that the statutes to which we shall hereafter refer establish the plaintiff’s right to recover upon the contract, and sustain the conclusions of the trial court, it will not be necessary to consider whether he also had, as concurrent remedies, the right to sue for breach of warranty of authority or for deceit, and, if he had when his cause of action therefor arose. The earlier cases in this country, especially those in New York, laid down the rule that one who enters into a contract in the name of an alleged principal, but without authority, is liable to third persons upon the contract as principal, and for the reason that it must have been the intention of the parties to bind some one, and, as the principal is not bound, the agent should be. Feeter v. Heath, 11 Wend. 477; Meech v. Smith, 7 Wend. 315; Dusenbery v. Ellis, 3 Johns. Cas. 70, 2 Am. Dec. 144; Rossiter v. Rossiter, 8 Wend. 494, 24 Am. Dec. G2; Palmer v. Stephens, 1 Denio, 471; Walker v. N. Y. State Bank, 9 N. Y. 582. See, also, White v. Madison, 26 N. Y. 117; Mott v. Hicks, 1 Cow. 513, 536, 13 Am. Dec. 550; White v. Skinner, 13 Johns. 307, 7 Am. Dec. 381; Randall v. Van Vechten, 19 Johns, 60, 10 Am. Dec. 193; Underhill v. Gibson, 2 N. H. 352, 9 Am. Dec. 82; Grafton Bank v. Flanders, 4 N. H. 239. The rule of liability thus enunciated in the New York cases first above cited was embodied in the form of a proposed statute by the Field Code Commission of that state, and the same was adopted by the Legislature of Dakota Territory in 1866 as a part of the Civil Code, without change, and has since been, and is now, in force in this jurisdiction. Sections 4342, 4343, Rev. Codes 1899, which establish .this doctrine, are identical with those contained in the proposed Field Code, and read as follows:
“Sec. 4342. One who assumes to act as an agent thereby warrants to all who deal with him in that capacity that he has the authority which he assumes.
“Sec. 4343. One, who assumes to act as an agent is responsible to third persons as a principal for his acts in the course of his agency in any of the following cases, and in no others: * * * (2) When he enters into' a written contract in the name of his principal without believing in good faith that he has authority to do so.”
That it was the express purpose of section 4343, subd. 2, supra, to declare the doctrine announced in the earlier New York cases, is
The defendant claims that as early as September, 1893, the plaintiff had knowledge of his want of authority, and, assuming this to be the fact, contends that he cannot recover for damages which
The conclusions of the trial court meet our full approval, and the judgment will be affirmed.