Leonard v. Warriner

13 Wis. 179 | Wis. | 1860

By the Court,

Dixon, O. J.

We discover no error in the proceedings below, except in the refusal of the court to give the third and seventh instructions asked by the appellant. The assignment of the contract by Warriner to Titus, and the subsequent delivery of the wheat by the respondent to the latter in pursuance of the assignment, and under the express or implied directions of Warriner, would not of themselves operate to discharge Warriner from his legal liability for the payment of the price. That could only be done by the consent of the respondent, tacitly or directly given, which the jury, by their verdict, have negatived. But admitting that Warriner was not released, still he cannot, under any circumstances, without his assent, be made responsible for the price of more or other or different wheat than that called for by the contract If the agreement had not been assigned, and he had received the wheat himself, it is very doubtful whether he would have been bound as upon the agreement for that which was fraudulently delivered, although, in ignorance of the facts, he might have accepted it. • If liable at all in such a case, it would seem that he should only be liable for the actual value of the wheat thus delivered and accepted, and not for the price which might be named in the contract. Because the article contracted for is of such a nature, that it is difficult to distinguish between that which is within the specifications and that which is not, it does not follow that the parties have a right to deceive and impose upon each other. If they wish their contracts enforced, they must act in good faith and with common honesty. In this case, however, there can be no pretense for charging Warmer with the price of any wheat which was not within the letter of the contract, although it was delivered to and accepted by Titus, and although Titus was perfectly satisfied to receive it, knowing all the circumstances. For, conceding that, by assigning tbe contract to tbe latter, Warriner made him bis agent for tbe purpose of tbe wheat, still tbe extent of that agency would be limited by tbe terms of tbe contract. He was bis agent only for tbe purpose of receiving tbe wheat specified in tbe contract, and if be went beyond it, although be might bind himself, be certainly would not bind bis principal. He was endowed with no discretionary power to change or enlarge tbe contract itself, so as to extend it to subjects not before embraced in it, and charge Warriner on account of them. He could bind the'latter only so far as be acted within its terms; beyond this be bad no authority, and could not do so. Tbe record shows that some part of tbe wheat delivered to Titus was purchased, not “raised,” by tbe respondent, and hence tbe instructions asked were proper and should have been given.

Tbe judgment is reversed, and a new trial awarded.