Kirschbon v. Bonzel

67 Wis. 178 | Wis. | 1886

Lton, J.

1. The written agreement for the erection of the house was executed under the respective seals of the parties signing the same. But seals are not essential to the validity of the instrument. The case is therefore within the rules laid down in Stowell v. Eldred, 39 Wis. 614, to the effect that when a person enters into a written contract in his own name, whether under seal or not, if a seal is not essential to its validity, if in fact he made the contract as the agent of another, the other contracting party may show such agency by parol, and enforce the contract against the real principal the same as though he had been named therein as such. The rule is thus stated in Story on Agency, § 160»/ “ If the agent possesses the due authority to make a written contract, not under seal, and he makes it in bis own name, whether he describes himself to be an agent or not, or whether the principal be known or unknown, he (the agent) will be liable to be sued and be entitled to sue thereon, and his principal also will be liable to be sued and be entitled to sue thereon, in all cases, unless from the attendant circumstances it is clearly manifested that an exclusive credit is given to the agent, and it is intended by, both parties that no resort shall in any event be had by or against the principal upon it.” There is nothing in the present case which takes it out of the general rule above stated.

Although the testimony on the subject is conflicting, it is sufficient to support the finding that the defendant husband was authorized by his wife to make the written contract in her behalf. "We think the finding is supported by a fair preponderance of the testimony.

2. The testimony of the acts and doings of the defendant Catherine in respect to the house while it was in process of erection, had a direct bearing upon the issue as to whether she was the contracting party. It was competent testimony, therefore. The statement of those acts and doings in-the amended complaint and findings of fact is of no importance whatever. "Without such statement, the plaintiffs are entitled to the judgment they have recovered.

8. We discover no abuse of discretion in the refusal of the circuit court to open the case for further defenses. The appellant does not claim that she was ignorant of the existence of those defenses when she pleaded and went to trial, yet both she and her -husband neglected to assert or even mention them when they had opportunity. They give no satisfactory reasons for such neglect. A perusal of the record leaves upon our minds a strong impression that the judgment of the circuit court is just to all the parties. We find no valid reason for disturbing it.

By the Court. — Judgment affirmed.