21 Wis. 197 | Wis. | 1866
The first question is : Did the county court err in instructing the jury “ that if they found from the evidence that the defendant, as chairman of the board of supervisors of the town of Oshkosh, agreed to pay for said town to
It was held in Smout v. Ilbery, 10 Mees. & Wels., 1, that where the wife, acting as agent for her husband, bad an original authority, which bad been revoked by the death of the husband, unknown to her, she was not liable by reason of making a void contract in bis name after bis death. The well reasoned opinion of the court in that case leads to the conclusion, that to make any agent personally liable, where be does not intend to be, and the credit was not given to him, there must be some wrong or omission of right on Ms part, such as asserting that be bad authority when be knew or ought to have known be bad not, or a failure to disclose fully all the facts within his knowledge. To the same effect is Ogden v. Raymond, 22 Conn., 384. See also Story on Agency, §§ 265, 287. It is not claimed that the appellant made any false representations to Lent, or practiced any deception upon him, unless it was done by making a promise in the name of the town which he bad no authority to make. His assuming to make a contract which be bad no authority to make would ordinarily, in the case of private agents, be equivalent to a representation that be bad authority to make it. But not so in this case; or if so, its falsity was known at the time to Lent. For the authority which the town bad was by virtue of a general statute law, which both parties alike are presumed to know. A representation made by the defendant to Lent, and at the time
It is said that this leads or may lead in this action to the conclusion that no one is liable; for the town is not. This may be so. But we do not think, if it be so, that it affords us a sufficient ground for holding the defendant liable, unless bis acts bring him within the principles we herein lay down. If the defendant bad stipulated with Lent that be should not be personally liable, it is clear that, in the absence of fraud on bis part, no personal liability would rest on him.
According to the authorities cited by the appellant’s counsel,, if be was chairman of the board of supervisors, the defendant was a public agent. The law raises a very strong presumption against any credit being given to a public agent, acting within the scope of bis authority, and requires a clear inten
The instruction was erroneous; because the defendant, if he acted as a public agent, was not ex necessitate liable by reason of trascending his authority under the circumstances of this case, either in an action ex contractu or ex delicto.
We-think also the admissions of Lent, made before the assignment of his claim, should have been received in evidence.
After a careful examination of the testimony, we do not find any evidence that Lent ever notified the defendant that he had, in pursuance of the alleged agreement, enlisted and credited himself to the town, or that the defendant, for at least six months after the enlistment, knew of such credit. Such notice should have been given within a reasonable time after the enlistment, or the defendant might have regarded the contract as broken on the part of Lent, and no longer binding on himself. We doubt whether, for the want of such notice, any cause of action whatever was proved against the defendant. But if there was sufficient testimony to go to the jury (which we do
By the Court. — Judgment of the county court reversed, and a venire de novo awarded.