Morse v. Ryan

| Wis. | Jun 15, 1870

Dixon, C. J.

This is a very plain case. The judgment must be reversed for error in excluding the evidence offered by the defendant below t§ prove the false and fraudulent representations made by the agents of the plaintiff below, in procuring the contract from the defendant as set- forth in the answer. It is argued that the evidence was properly excluded, on the ground that no proof had been given of the agency, or that Robinson and Henry Ryan, the alleged agents, were authorized to act for the plaintiff in negotiating for and procuring the contract to he made by the defendant, and consequently, that their representations made to the defendant, and upon which he was induced to enter into and execute the contract, were inadmissible against the plaintiff. The answer to this position is obvious. It was already in evidence that the plaintiff had accepted the contract. It was in writing, and the plaintiff had signed it. He had acted under and claimed the benefit of it, and was then claiming such benefit. The suit was brought upon it, to recover damages for alleged breaches on the part of the defendant. All this appeared from the pleadings and the admissions contained in them. It was also already in evidence that the negotiation or arrangement which preceded the contract, and which led to its consummation, was between the defendant and Robinson and Henry Ryan. The defendant, who was the witness, had testified to this, and that Robinson acted for the plaintiff, and that the business was done through Robinson and Henry Ryan. Why then were not the statements and representations of Robinson and Henry Ryan admissible ? The idea seems to have been, because there was nó proof of previous authority from the plaintiff to them to make the statements and representations. This was a clear mistake. The. plaintiff having ratified and affirmed the contract, he also ratified and affirmed the means by which it was obtained; and such ratification was equivalent to previous authority given by him. The doctrine of the law is well settled, that a principal cannot accept and enjoy the benefits of a bargain made by his agent, without at the same time adopting the instrumental-ities by which the agent consummated it. Elwell v. Chamberlain, 3 N. Y. 611; Crans v. Hunter, 28 N.Y. 389" court="NY" date_filed="1863-09-05" href="https://app.midpage.ai/document/crans-v--hunter-3614755?utm_source=webapp" opinion_id="3614755">28 N. Y. 389. This is a sound and wholesome doctrine, and one which was fully applicable to the case here. “ I should be very much shocked,” says Lord St. Leonards in Nat. Exch. Co. v. Drew, 2 Macqueen (House of Lords) 103, “at the law of England, if I could bring myself to believe it would not reach the case of a person so availing himself of a misrepresentation of his own agent.” And it seems to be now conceded in England that the knowledge of the agent is the knowledge of the principal, without regard to the manner of acquiring it, or the fact of its being communicated to the principal. Dresser v. Norwood, in Exchequer Chamber, 17 C. B., N. S., 466 [112 E. C. L. 466, 480]. And the same doctrine is held in Hart v. The Bank, 33 Vt. 252" court="Vt." date_filed="1860-11-15" href="https://app.midpage.ai/document/hart-v-farmers--mechanics-bank-6577032?utm_source=webapp" opinion_id="6577032">33 Vt. 252. The court below should have received the evidence offered of the statements and representations, which were the same as if they had been made by the plaintiff himself.

Upon the other question presented, the court expresses no opinion. I am inclined to think, however, upon the facts as stated in the answer and proofs offered by the defendant, that the contract is void. It seems to me to be illegal, corrupt, and contrary to the principles of public policy, and just such a contract as no court should sit in judgment upon, except to pronounce it void, and to dismiss any action brought to enforce it.

By the Court. — The judgment of the circuit court is reversed, and a venire de novo awarded.