97 Wis. 332 | Wis. | 1897
1. The findings of the jury are plainly supported by the evidence, and the court properly refused to set aside the verdict on the motion of the defendant, as being against the weight of evidence. If the defendant acted and contracted avowedly as the agent of his co-owners of the property to be sold, who were known as principals, his acts and contracts within the scope of his authority would be •considered the acts and contracts of the principals, and. would involve no liability on the part of the defendant, Morawetz, as their agent; for the presumption is that an agent always intends to bind his principal, and not himself, although he may pledge his own private credit, and obligate himself to the performance of a contract which otherwise would devolve on his principal. Under the facts in this case, the defendant was, we think, properly held liable, and the recovery, beyond any fair question, is right, and should be affirmed.
It was found, in answer to the first question submitted to the jury for a general verdict, that the defendant represented to Oliver, the plaintiff, that he (Morawetz) was authorized to sell the real estate in question upon the terms stated in the receipt in evidence. After the plaintiff had performed his undertaking and procured a purchaser, the defendant, as well as his co-owners, refused to sign the paper
In Kroeger v. Pitcairn, supra, it was laid down that: “ The cases in which agents have been held liable personally have-sometimes been classified as follows, namely: (1) Where-the agent makes a false representation of his authority with; intent to deceive; (2) where, with knowledge of his want of. ■authority, but without intending any fraud, he assumes to-act as though he were fully authorized; (3) where he undertakes to act, Teona fide believing he has authority but in fact has none, as in the case of an agent acting under a forged.
The defendant asserted his authority to make the sale, and induced the plaintiff to undertake to and procure a purchaser, as he did. The defendant is now in court, both as a party and as a witness, denying that he had any such authority, and is therefore chargeable with having deceived and injured the plaintiff, who relied on his assertions. An action on the case for such a deceit would be a proper remedy, and assumpsit might, as we have seen, be maintained upon the express warranty or assurance of his authority. For these reasons, the defendant wás liable, and the recovery against him is clearly right. It is therefore immaterial whether'the charge of the court was strictly correct. It is clear that it cannot be regarded as containing error prejudicial to the defendant’s rights; for, as we have said, upon the first finding of facts and the uncontradicted evidence of the defendant he was liable. It is not material, therefore, to notice the exceptions taken to the instructions; for, in the view we have taken of the case, they become immaterial, and cannot be said to be prejudicial to the rights of the defendant, and do not constitute reversible error.
• 2. The court submitted the case under the statute for a general verdict, and for answers to certain specified questions submitted in connection therewith. R. S. sec. 2858. This was entirely proper, and we think that the practice pursued by the court in the present instance is free from
By the Gourt. — The judgment of the circuit court for Milwaukee county is affirmed.