Lenz v. Brown

41 Wis. 172 | Wis. | 1876

Cole, J.

The undisputed evidence shows that E. L. Hall was tbe agent of Lydia Ann Hall in operating tbe saw-mill, and in carrying on tbe lumber business at Oconto, in the fall and winter of 1872-8, at the time the contract for supplies was made with the plaintiffs. The title of this mill was in Mrs. Hall, who had assumed the indebtedness of R. L. Stall due the plaintiffs, and had mortgaged her property for its payment. It appears that she had entered into a contract with the plaintiffs in November, 1872, for the payment of this indebtedness by the proceeds of the mill. R. L. Hall at this time was acting as her agent in getting out logs and running the mill, and in the general management of the business. These facts are clearly and conclusively established by the testimony. The learned circuit judge, however, submitted to the jury the question whether, in the months of January and February, 1873, when the letters offered in evidence were written, R. L. Hall was the agent of Mrs. Hall, or was accustomed to represent himself as her agent for the transaction of the business connected with the mill, and operating the sapie, and whether Mrs. Hall knew of his making these representations, and consented to them, or did not object. If so, the court held that Mrs. Hall and her estate would be liable to third parties contracting with the agent in good faith, relying upon these representations and believing them to be true. According to our view of the case, the circuit court might have directed the jury that the fact of agency was fully shown; for it is inconceivable, under the circumstances, that R. L. Hall should thus be operating her mill, shipping lumber, managing her business and discharging her debts, unless with her authority.- As a matter of fact, the witness Pierce testified that he had heard Mrs. Hall say “ that Richard was her agent, looking after her business, the portable mill,” etc.; and from the nature and circumstances of the case, the inference is irresistible that he was acting as her agent in these various business transactions.

This brings us to a consideration of the contract in regard to the supplies. By the letter of February 15, 1873, Mrs. Hall, through her agent E. L. Hall, made a proposition to the plaintiffs that they should let her retain the proceeds of the mill until April 15th following, for which she offered to pay them a reasonable consideration. She proposed to buy of them groceries and supplies as she was then doing, provided they would give as good prices as she could get anywhere in Green Bay, they allowing a certain sum for each car-load of lumber, to be agreed upon, which was to be shipped to the plaintiffs’ account. The plaintiffs replied, February 19th, in substance, that they acceded to the offer to receive lumber for groceries and provisions, and agreed to furnish, for every car-load of straight mill-run lumber, $40 worth of goods, such as might be ordered, on receipt of the bills of lading, until the 15 th of April next, provided Mrs. Hall would strictly commence again on that day to ship lumber to fill the existing contract entered into on the 19th of the previous November. This was the basis of the arrangement; and we cannot see why it did not become a binding contract upon the parties. Certainly the suspension of the stipulations of the existing agreement until April 15th was a sufficient consideration for the contract. And it is obvious that Mrs. Hall distinctly bound herself by the arrangement to order of the plaintiffs whatever groceries and supplies she might need in carrying on her lumber business up to that time, and they to furnish $40 of such goods for each car-load of lumber shipped to their account, the balances on the sales of lumber to be adjusted on final settlement. It is true, the quantity of goods which should be ordered and furnished was not specified; but still we do not thinlc the contract was void for that reason. In the case of Holtz v. Schmidt et al., 59 N. Y., 253, to which we were referred upon this point, the court held, under the arrangement, that “ the plaintiff did not agree to purchase wines or liquors of Schmidt & Co., nor did they agree to sell the plaintiff or comply with any orders he might draw upon them. Either party was at liberty to decline to enter upon tlie contemplated dealing.” But tins could not be said of the obligations of the parties in the case before us. Mrs. Hall could not refuse to buy of the plaintiffs the goods she wanted, provided they would furnish them at as low prices as she could procure them for elsewhere in Green Bay; nor could they refuse to sell the stipulated amount for each car-load of lumber. It appears that the parties acted under this contract; and all the goods which the plaintiffs seek to hold the estate of Mrs. Hall liable for, were actually ordered by the agent, R. L. Hall, before the 15th of April, when it expired by its own terms. Mrs. Hall died on the 21st of March, but R. L. Hall continued to order goods after that time as. before, and the plaintiffs as usual to fill the orders. The evidence, however, does1 not show that the plaintiffs knew of the death of Mrs. Hall when they furnished the goods. Now the question is, Can the estate be held liable for the goods ordered and furnished after the death of Mrs. Hall? The able and ingenious counsel for the administrator insists that it cannot be. He says, admitting the contract to be a valid, continuing one, binding upon Mrs. Hall during her lifetime, still that it was incapable of being executed after her death, for the reason that all authority of the agent is extinguished by the death of the principal. The general rule is indisputable, that the death of the principal, operates as a revocation of the authority of the agent to act. But this general rule has its exceptions. “ Where the act, notwithstanding the death of the principal, can and may be done in the name of the agent, there seems to be a sound reason, why his death should not,be deemed to be a positive revocation under all circumstances, and that a subsequent execution of it may be valid.” Story on Agency, § 495. This precise question has received, a most able and exhaustive discussion by Sutlott, J., in Ish v. Crane et al., 8 Ohio St., 520, who vindicates the soundness of the principle stated by Judge Story. We could add nothing valuable to the discussion of the question, should we enter upon it. We content ourselves witb saying that the case before us seems to come within the exception. It was not necessary that the orders for the supplies should be in the name of the principal. The supplies were absolutely essential for the completion of the lumbering transactions already commenced. They were indispensably necessary to preserve the estate. At the time of the death of Mrs. Hall, the mill was in operation, and there were employed about the mill and in the woods, getting out logs, quite a number of men and teams. It would be impossible to suspend operations at once without loss to the estate. It seems unreasonable to hold, under such circumstances, that, because of the death of Mrs. Hall, no supplies or provisions for the men and animals could be ordered, and bind her estate. No administrator could be immediately appointed to represent the estate or act for it; and unless the agent could act in the execution of the contract, it is manifest that much loss would result to all interested in the estate. Eeason and justice would seem to require that the agent have power to act after the death of the principal in such a case. Principles of public policy, and the interests of trade and commerce, require some qualification of the rule of the common law — if it be a rule,— that the authority of the agent is extinguished by the death of the principal, when the act can and may be done in the name of the agent. It is obvious that in this case the supplies could be lawfully ordered in the sole name of R. L. Hall. There is the more reason for this rule, as it is altogether probable that the plaintiffs furnished the goods in ignorance of the death of Mrs. Hall. "We therefore think the estate is liable for the goods furnished under the contract after her death.

Some objection is taken to the judgment; but it appears to be sufficiently formal. It amounted to an allowance of the claim against the estate.

The judgment of the circuit court must therefore be affirmed, and the cause remanded for further proceedings.

By the Gowrt. — So ordered.