139 Ind. 501 | Ind. | 1894
Lead Opinion
On the 14th day of December, 1887, the appellee, acting for himself and the other heirs of Jonas
Little and Wilson took possession under the contract, and began the improvements. According to the terms of the contract, it would seem that they were tenants in common, and not partners, and it appears from the record that this cause finally proceeded upon that theory, although the partnership theory was at first also suggested.
About June 1, 1888, Little desired to sell his interest, and employed Wilson to procure a purchaser. Wilson had done business for Hardy & Metzger, of Logansport, Indiana, manufacturers of linseed oil, and went to
Metzger at first paid five hundred dollars on his contract, afterwards sending six thousand, and finally, about the first of October, the remaining six thousánd. On making the last payment, he received back his contract, and tore ‘it up. Afterwards, on learning from Wilson that his deed for the Little interest was executed and on record, he destroyed his duplicate of the same contract.
On October 20, 1888, by agreement of Huntington, Little and Wilson, Metzger not being present, Huntington made a deed for all the land to one Johnson, acting as third party, or go between. Johnson executed and acknowledged the plat, to be known as Arlington Plights, and then executed to Little notes for the forty-five thousand dollars, with specific mortgages on the several lots. The notes were indorsed by Little to Huntington. Johnson also executed a deed to Wilson for the whole tract. In this deed was inserted the following clause: ‘‘Subject, however, to mortgages bearing even date herewith, and recorded this day in the office of the register of deeds in and for said county, aggregating forty-five thousand dollars of principal, which the second party assumes and agrees to pay.” Wilson likewise executed a deed to Metzger for an undivided one-half of the plat, in which was also inserted an assumption' clause,
Metzger from time to time sent to Wilson his proportion of the expense of improving the property, also money to pay his share of interest on the mortgage debt, and his taxes.
On December 31, 1888, Wilson voluntarily, for reasons which do not appear, executed another deed' to Metzger, being substantially the same as that made October 20, and placed it on record also without sending it to Metzger.
Metzger joined with Wilson in making deeds for three lots sold. The enterprise proved a failure, and the interest for January, 1890, was not paid. In February, 1890, Huntington notified Metzger that the interest being unpaid the whole debt had become due, and also drew his attention to the assumption clause, in his deed from Wilson. Metzger claims that this was the first intimation received by him that he was in any way personally liable for the debt, and that up to that time he believed that he had bought the property subject simply to the mortgage debt, and that he might at any time
On May 13, 1890, Metzger made a deed back to Wilson for his interest in the property, reciting that the deed was intended to reinvest in Wilson the lands conveyed by Wilson to Metzger under dates of October 20 and December 31, 1888, stating that said deeds were never delivered to him but were placed on record without his knowledge or consent; that he never assumed or agreed to assume the payment of any liens on said lands; that he never authorized' .the execution of any such deeds, and never accepted the same nor authorized the making of such deeds.
This suit was begun May 16, 1890, by Huntington against Metzger and Wilson, in the Cass Circuit Court, and on June 13, 1890, a verdict was found in favor of Metzger. On the granting of a new trial the venue was changed to Miami county, where a verdict was rendered against Metzger for twenty-six thousand dollars. The jury also returned answers to certain interrogatories. The only parties to this appeal are Metzger and Huntington.
The action was personal against Metzger upon the assumption clause in the deed from Wilson.- The complaint was in six paragraphs. The first and fifth paragraphs were based upon the theory that Metzger and Wilson were partners. This theory, however, seems to have been abandoned. The fourth and sixth paragraphs count upon the deed of December 31 as well as upon that of October 20, but the deed of December 31st was not finally considered, and the verdict rested upon the deed of October 20, 1888. The second and third paragraphs, upon which the case was therefore tried, are based upon the assumption clause in the deed of October
A verified answer was filed in seven paragraphs, the first being a general denial; the second, a plea of want of consideration; the third, payment; the fourth and fifth, confession and avoidance; and the sixth and seventh, non eat factum.
A reply followed in general denial to the second, third, fourth and fifth paragraphs of the answer; also special pleas to the fourth and fifth paragraphs. To the special pleas, being the second and third paragraphs of the reply, demurrers were overruled.
The points discussed in the briefs of counsel are:
1. The sufficiency of the evidence to sustain the judgment.
2. The sufficiency of the special paragraphs of the reply, to which demurrers were overruled.
3. The correctness of the court’s ruling in the giving and refusing of instructions.
The real question underlying all these discussions is whether Wilson, in the making of the deeds in question and particularly in the placing of the assumption clause in his own deed to Metzger, was acting as Metzger’s agent; and, if he was not such agent, whether Metzger ever ratified the placing of such clause in said deed.
In the fifth paragraph of his answer, which is substantially the same as the fourth, the appellant Metzger specifically and in detail denied such agency or ratification; and averred that his only contract in relation to said lands was rpade with Frank E. Little, in which, through Wilson, as Little’s agent, he purchased Little’s interest subject to the mortgages, but without any assumption of payment; that he never saw the deeds, and had no notice or knowledge of the clauses of assumption therein until some time in February or March', 1890,
To this answer the appellee filed his third paragraph of reply, which is substantially the same as the second paragraph.
It is to be learned from the reply that the appellee, William W. Huntington, contracted with Little and Wilson to sell the land subject to mortgages, aggregating $45,000; that Little and Wilson “assumed these mortgages as part of the purchase-price,” and that a deed should be given them as soon as the ground was platted, so that mortgage liens could be placed separately, “creating specific liens upon said lots”; that after Little and Wilson entered into possession “the said Little sold his interest, about June 1, 1888, to the defendant, William G. Metzger,” the terms of the sale being unknown to the appellee; that the appellee “was advised by said Little and Wilson that the said Metzger had succeeded to the rights of said Little under said contract for the sale of said lands, and on the representation that the said Metzger was financially responsible, the plaintiff (appellee) accepted said Metzger in lieu of said Little”; that Metzger contributed his share towards the improvement of the lots; that Metzger came to Minneapolis and saw the land, and that he was advised by Wilson from time to time of everything that was being done and the expense
The acts of Huntington, Little, and Wilson in relation to the property are very fully alleged in the reply, but the suit is upon Metzger’s assumption of indebtedness to Huntington, and there is a total absence of allegation as to Metzger’s having directly made or ratified such assumption. Neither is it directly alleged that Wilson, or any one else, was Metzger’s agent in the making of such assumption. If such agency existed, or if such ratifica
The reply shows that Little and Wilson assumed the debt to Huntington in their contract with him; but no assignment or transfer of this contract to Metzger is shown. In his answer Metzger set up a contract with Little, according to the terms of which he purchased from Little “an undivided one-half interest in that tract of land * * which is to he known as 'Arlington Hights,’ Lake Minnetonka,” on certain conditions, among them, “said conveyance to be made subject to specific mortgages on lots when said tract is platted, aggregating the sum of forty-four thousand seven hundred dollars;” but no assumption of the debt being stated.
Of this sale by Little to Metzger the reply states: “The said Little sold his interest about June 1, 1888, to the . defendant, William G. Metzger”; adding, after stating that Little’s contract to Metzger has been destroyed: “That the plaintiff was advised by said Little and Wilson that the said Metzger had succeeded to the rights of said Little under said contract for the sale of said lands, and on the representation that the said Metzger was financially responsible, the plaintiff accepted said Metzger in lieu of said Little.”
It will be observed that the reply simply states that “Little sold his interest” to Metzger. There is no suggestion in this that Metzger took an assignment of Little’s contract with Huntington, and none that Metzger had assumed any obligation to Huntington. That Little and Wilson should have informed Huntington that Metzger had succeeded to the rights of Little under the contract amounts to nothing. Metzger could not be bound by what Little and Wilson said to Huntington.
Indeed, the reply at this point shows laches on the
The facts relied upon to show that Wilson, in inserting the assumption clause in the deed, was acting as Metzger’s agent are, that Wilson was in possession of the lands with the knowledge and consent of Metzger,
It is not claimed that Metzger and Wilson were partners. Certainly then all the acts stated were acts that Wilson might do as tenant in common, owner of the undivided one-half of the land, and in possession. It is true that a tenant in common may act as agent for the other owners; but his being a tenant in common and in possession does not of itself make him agent to incumber his cotenants’ interests, still less to impose a personal obligation upon them. There is no such implied agency. Mechem Agency, section 71; Thompsons. Bowman, 73 U. S. (6 Wall.) 316.
But there is another reason why Wilson could not be Metzger’s agent in the assumption of the debt. His interests in the transaction were opposed to those of Metzger. It is averred in the reply, that Wilson “informed the plaintiff that as the defendant, Metzger, was with him in the contract, and was a man of large means, and would assume the payment of the notes and mortgages, this would make them perfectly secure.” Then the deeds are described as, “one from Johnson to him, Wilson, for the lots in said plat, containing an assumption of the notes and mortgages; one from said Wilson to the defendant, Metzger, for an undivided half of said
As said in Mechem on Agency, section 713, “The principal may, if he sees fit, intrust his interests in the hands of an agent whom he knows to also have an interest in the same transaction which is or may be adverse to his own. But this is not to be presumed, and. it must appear that the interest of the agent was fully and fairly disclosed to the principal.” See, also, Michoud v. Girod, 45 U. S. (4 How.) 502, and Wardell v. Railroad Co., 103 U. S. 651.
Indeed, the duty of Wilson to Metzger, if he were his agent, was in this transaction so opposed to Wilson’s interest to himself, that Huntington was again put upon inquiry to know that Metzger had really agreed to this
“Every person” (says Mechera Agency, section 706), “dealing with an assumed agent is bound, at his peril, to ascertain the nature and extent of the agent’s authority. The very fact that the agent assumes to exercise a delegated power, is sufficient to put the person dealing with him upon his guard, to satisfy himself that the agent really possesses the pretended power. If, having relied upon it, he seeks to hold the alleged principal responsible, he must be prepared to prove, if either be denied, not only that the agency existed, but that the agent had the authority which he exercised.”
And, in section 276, of the same authority, it is said: “Persons dealing with an assumed agent therefore, whether the assumed agency be a general or special one, are bound at their peril, to ascertain not only the fact of the agency but the extent of the authority, and in case either is controverted, the burden of proof is upon them to establish it.” See, also, Davis v. Talbot, 137 Ind. 235, and authorities there cited.
Even, therefore, if Wilson were a general or special agent of Metzger, in the care and management of their property, which we think does not appear from th,e facts pleaded, still that would not be enough, especially in view of the adverse interest of Wilson, to warrant Huntington to take it for granted that Wilson was vested with the extraordinary power to assume in Metzger’s name, and so as to bind him, the personal obligation to pay a debt of twenty-five thousand dollars.
It is not alleged in the reply that he did any of these things after learning of the existence of the assumption clause in the deed; but it is said that before he reconveyed the land to Wilson he knew that the appellee was relying upon the assumpsit. The reliance which appellee may have had upon the assumpsit could have no force to make effective an assumption which Metzger never made or ratified, and which he repudiated as soon as he learned of its existence by reconveying the property, and also abandoning upwards of seventeen thousand dollars which he had invested in it. Ratification, like agency itself, znust be clearly and affirmatively established by him who relies upon agency or ratification for the enforcement of his claim. Robinson v. Anderson, 106 Ind. 152; Runyon v. Snell, 116 Ind. 164.
But appellee, tacitly admitting that agency is not well pleaded, contends that the verdict finding the fact of agency cures the weakness of the reply in this respect; and authorities are quoted to sustain this contention. It is true that a pleading in which all the essential facts are pleaded, but pleaded imperfectly, will be cured by a verdict finding .the facts. But such is not this case. There is no allegation that Wilsozi was Metzger’s agent for any purpose, still less that he had authority to insert the assumption clause in the deed; and no facts are pleaded, as we have seen, from which such agency or authority could be infez’red.
The judgment is reversed, with instructions to sustain the demurrers to the second and third paragraphs of the reply, and for further proceedings.
Filed June 22, 1894.
Rehearing
On Petition for. a Rehearing.
In their petition and briefs for a rehearing, counsel for appellee have displayed much earnestness in argument, even pushing their zeal to the utmost verge of a proper discussion of the case. It would seem that the briefs might well have been devoted exclusively to the discussion of questions presented in the record.
Because the court has been unable to reach the conclusion reached by counsel, it is intimated that we have not considered appellee’s side of the case. The sum of this contention is that because the court does not see the record as counsel see it, therefore the court does not see it as it is. We are, however, of opinion that our own vision should, guide us, and inasmuch as we are unable to use appellee’s glasses, we must be content to make use of our own in looking through the record.
To counsel, the record seems to show that appellee is entitled to recover from appellant a large sum of money. To the court, it is apparent from the same record that an outrage was attempted upon appellant; that, whether by
In appellee’s additional brief, Barrett v. Lewis, 106 Ind. 120, and Otis v. Gregory, 111 Ind. 504, are cited to show that the substance, rather than the forms, of a transaction are to be regarded in adjudicating the rights of parties. This is a sound and equitable rule, and peculiarly applicable to the case before us.
Regarding, therefore, the substance of the pleadings in this action, which were considered in the original opinion, and upon which the case was tried and the decision rendered, we find that the complaint presents a prima facie case in favor of the appellee. A deed is shown from Wilson to Metzger, duly recorded, and containing a clause in which the payment of a mortgage debt due appellee is assumed. Acts from' which an acceptance by Metzger of said deed may be inferred are also alleged.
The answers admit this deed and its record, and that it contains the assumption clause, but deny that the clause was inserted with Metzger’s consent or knowledge, or that its insertion was ever ratified by him. This certainly was in substance a plea in confession and avoidance.
The replies set up the facts in detail, showing all the transactions from the first contract of appellee with Wilson and Little until the bringing of the suit against Metzger upon the assumption clause. The facts so detailed do not show that Metzger ever authorized or knew of the insertion of the assumption clause, or that he ever ratified it. The demurrers to the replies should, therefore, have been sustained. Otherwise a personal debt may be imposed upon an individual without his knowledge
But, while counsel do not any longer seriously argue that the replies are good in themselves, yet it is said that the jury found that in the making of the deed from Wilson to Metzger, and in the accepting of that deed, with its assumption clause, Wilson was Metzger’s agent; that, therefore, the replies, as thus cured by the verdict, show that Metzger, through Wilson, his agent, did have knowledge of the assumption clause, and did accept the deed containing it.
Agency is a conclusion of fact, to be established by direct proof or by the attendant circumstances. Columbus, etc., R. W. Co. v. Powell, Admr., 40 Ind. 37; Isbell v. Brinkman, 70 Ind. 118; Indiana, etc., R. W. Co. v. Anderson, 114 Ind. 282.
It is not claimed that there is in this case any direct proof that Metzger ever appointed Wilson his agent. The appointment, if made, can be made known to us only by inferences from facts shown. If, therefore, the particular facts and circumstances found are not consistent with the fact of agency, then the mere conclusion of the jury, that one wás the agent of another, falls unsupported to the ground.
Undoubtedly, the jury were of opinion, and correctly so, as said in Story on Agency, section 2, that, in general, “whatever a man sui juris may do of himself, he may do by another; and, as a correlative of the maxim that what is done by another is to be deemed done by the party himself.”
So here, if the jury concluded from the circumstances detailed in the record that Wilson was Metzger’s agent, then they might further conclude that what Wilson did in the premises, was done by Metzger.
Hence the question, first of all, to decide is, whether,
The definition of an agent at the common law, as quoted in Story on Agency, section 3, is: “An attorney is he who is appointed to do anything in the place of another.”
The appointment need not be in writing. It may be inferred from the words or acts of the principal. These words or acts must, however, be such as point clearly to the agent as such.
In Evans on Agency (Ewell’s ed.), the definition given is: “An agent is a person duly authorized to act on behalf of another, or one whose unauthorized act has been duly ratified.” This definition is adopted in 1 Am. and Eng. Encyc. of Law, 333.
It will be noticed that the agent rpust be duly appointed, or his act must be duly ratified. It is not enough that the jury find that Wilson was' Metzger’s agent. The other facts found must be such as to allow the inference that he was duly appointed, or, at least, that his acts were duly ratified. The jury can not be allowed to give us their unsupported, and even, as here, contradicted, conclusion, simply, that he was agent.
So, also, it is not enough to show that Metzger ratified and acted under the deed. It is necessary to show that, at the time of such ratification, he knew of the existence of the assumption clause in the deed, and that he ratified such assumption clause; unless, indeed, it should api pear that the ratification of the deed was made with the intent to take all liability without such knowledge. Otherwise, all material circumstances must be made known to the principal. The act of the agent can not
In Manning v. Gasharie, 27 Ind. 399, where an agent was authorized to buy goods for cash only, it appeared that he had bought certain goods on credit. It was held that the acceptance and use of the goods by the principal would not be a ratification of the act of the agent, unless the fact of the purchase haying been made on credit was known to the principal. See, also, Davis v. Talbot, supra, cited in the original opinion.
In the case at bar, in answer to interrogatories, the jury found that in the contract of sale to Metzger of Little’s interest in the land, Wilson was Metzger’s agent. But, in two other answers to interrogatories, just preceding, the jury also found, with reference to the same transaction, that Wilson was Little’s agent. This contradiction shows that the jury had but a vague and confused idea of the meaning of the term agent. In numerous other answers, the jury, in finding the particular facts and circumstances of all the transactions, show clearly that Wilson could not be Metzger’s agent.
Even if Wilson had authority to execute and deliver to Metzger a deed for the land, and also to accept that deed, all as Metzger’s agent, an absurdity on the face of the statement, yet even such authority would not give to Wilson the right to insert in the deed a personal obligation on the part of Metzger to pay a lien upon the land. Only by a ratification of the transaction, with full knowledge of all the circumstances, including the contents of the deed, could the principal be bound by such unauthorized act of the agent.
We think it clearly appears from the record in this
In arguing that the evidence supports the finding of agency, acceptance, and ratification, counsel say that the jury “heard the cross-examination [of Metzger] , and concluded, as it was their sole province to conclude, that he was not telling the truth.” It is true that the jury have a right to reject evidence if they do not believe it to be true; but the question here is, not what evidence the jury may have disbelieved, but whether there was evidence to support the findings made by them. It will not do to explain away the evidence against the correctness of the findings; it is necessary to show some evidence in their favor.
The only evidence referred to by counsel which is claimed to directly support the findings as to Metzger’s having knowledge that the payment of the mortgage debt, was assumed in the deed to him from Wilson, is a fragmentary copy of a letter from Wilson to Metzger, said to have been written a few days after the date of the
Other items of evidence are cited in appellee’s several briefs, from which it is argued that the jury might make inferences as to Metzger’s knowledge of the assumption clause in the deed. None of this evidence, however, was of such a nature as to be inconsistent with Metzger’s acceptance of the deed subject to the mortgage debt; and it is only by the utmost straining that such inference could be made. Agency, acceptance, ratification, these should be shown by the evidence, not guessed at by the jury. None of the evidence showed knowledge by Metzger of the assumption clause in the deed.
The petition for a rehearing is overruled.