116 Wis. 328 | Wis. | 1903
An inspection of tbe complaint and findings discloses that defendant’s agent, Klempke, made false-representations as to tbe character of defendant’s building. Tbe 'plaintiff relied thereon. From tbe character of the-building, it was impossible for plaintiff to ascertain tbe truth-of such representations. Because tbe fact represented was-not true, plaintiff suffered loss. Defendant’s agent bad authority to show tbe flats, make leases, put tenants in possession, and collect tbe first month’s rent. He bad no express-authority to make any “warranties or representations” in regard to tbe construction of tbe building, and be bad no intention of deceiving plaintiff, and believed tbe statement be-made to be true.
It must be understood at tbe outset tbat we are not dealing-witb tbe question of tbe authority of an agent to make warranties for bis principal. A warranty, if false, gives rise to an action on contract. Tbat is not this case. If we understand tbe complaint, tbe plaintiff sues to recover damages because of certain false representations made by tbe defendant’s agent. A warranty is a collateral undertaking by which
“Tbe terms ‘warranty’ and ‘representation’ are not synonymous. A warranty is always a representation, but tbe reverse is not necessarily true, tbe first being a more comprehensive term.”
This case seems to have become divested of any element of contract, and turns upon tbe question whether tbe representations made by Klempke were within tbe apparent scope of bis employment. An agent’s authority to warrant, as said in Westurn v. Page, 94 Wis. 251, 68 N. W. 1003, must arise from express authority, or proof tbat tbe transaction is usually attended with warranty. Cases may and frequently do arise where tbe agent may have no authority to warrant, and yet, from tbe character of bis agency, bis principal may be held liable in tort for false representations made by him. This distinction may seem somewhat fine and inconsistent, yet it is nevertheless one amply recognized by tbe courts, and frequently enforced. It arises from tbe character and duty of tbe agent in relation to tbe particular business in bis charge. Tbe general liability of tbe principal is as stated in tbe late case of Hoyer v. Ludington, 100 Wis. 441, 76 N. W. 348, where tbe following language was used:
“There is no doubt of tbe general proposition tbat if an agent is employed to effect tbe sale of lands for bis principal, and be does so by means of false representations in respect to tbe land conveyed, even without tbe authority or knowledge of bis principal, tbe latter is chargeable with such fraud in tbe same manner as if be bad known or authorized tbe same. Law v. Grant, 37 Wis. 548; McKinnon v. Vollman, 75 Wis. 82, 43 N. W. 800; Gunther v. Ullrich, 82 Wis. 222, 52 N. W. 88. And this is especially so when tbe principal accepts and enjoys tbe benefits of tbe purchase. Fintel v. Cook, 88 Wis. 487, 60 N. W. 788. But even then ‘the representation which is to bind.tbe principal must be made in reference to tbe subject-matter of bis agency; it must*333 be made while tbe agent is acting as such; and tbe making of such representation must be within tbe apparent scope of bis authority.’ Mecbem, Ag. § 743.”
In Law v. Grant, 37 Wis. 548, tbe rule in such cases was stated with great strictness. It was there said:
“If tbe agent effected it [tbe saie] by means of false representations or fraud of any other description, although without authority from tbe plaintiff to do so, and although the plaintiff was entirely ignorant that he had done so, the legal status of the plaintiff is precisely the same as it would have been had he made the false representations, or committed the fraudulent act to the same end, in person.”
It seems to have been assumed that the acts done or representations made in that ease were within the apparent scope of the agent’s authority. The agent represented that valuable minerals had been found on the land. If the principal was bound by such representations, it is not difficult to see in this case that defendant was responsible for the representations as to the fire wall. The representation of the existence of such wall was one of the inducements that led the plaintiff to make the lease he did. In the one case the representation of a mineral discovery induced the sale, and in the other the representation of the existence of a fire wall induced the lease. The one seems to have been as much within the scope of the agent’s employment as the other. The representation as to the existence of the fire wall referred to the safety and condition of the premises. If it existed, the fact was an inducement to plaintiff to make the lease he did. Suppose plaintiff had asked the agent whether the roof leaked or the plumbing was in good condition; would not the agent have had implied authority, from the fact that he stood representing the owner, to have made answer to such questions ? The difficulty .experienced in cases of this kind is as to the proper understanding of the phrase “within the scope of his agency.” It cannot properly be restricted to what the parties intended in the creation of the agency. Nor
In this view, the conclusions of the referee and the trial court were erroneous, and the judgment must be reversed. There being no bill of exceptions, and no finding as to the •amount of plaintiff’s loss, the court below is directed, if necessary, to take further testimony upon the subject, to determine the amount of such loss, and to enter judgment therefor for the plaintiff.
By the Court. — So ordered.