117 Wis. 278 | Wis. | 1903
The contract upon which the plaintiffs claim to recover was made with an assumed agent. There is no legal presumption that an agency exists, in the absence of proof, hence it was necessary for the plaintiffs to prove, not only the fact of agency, but also the fact that the agent’s authority was sufficiently extensive to authorize him to bind the principal by the contract which he assumed to make. This might be done by showing express authority given by the principal to the agent to make such contracts, or by showing that the principal had invested the agent with apparent authority to make such contracts, upon the faith of which apparent au
These are believed to be the only material facts having any bearing upon the question of implied or apparent authority. Upon these' facts the trial court ruled, as matter of law, that authority was shown, and this is really the main question in the case. It will be noted that there was no proof of general
It is said in this case that there was no dispute about the facts, and hence that it was a question for the court alone, but we cannot agree with the contention. While there was no serious dispute as to the circumstances, we cannot regard the case as one where the inferences of fact from the circumstances shown were such that reasonable minds could come to but one conclusion, and this is the final test upon such questions. Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 80 N. W. 1020.
This brings us to the rulings of the court excluding evidence offered by the defendant. The plaintiffs having offered proof of circumstances from which they claim that the conclusion should be drawn that the officers of the company either did know or should have known of the acts of Duncan, the defendant offered to. show what Duncan’s powers actually were under his contract; also the fact that the defendant’s officers had no knowledge of Duncan’s assumed contract with the plaintiffs; also the fact that Duncan drew and signed a requisition on the storekeeper of the. company for the die, which stated that it was to cost not exceeding $100. All of
It is admitted by the plaintiffs that the contract was that the die should operate satisfactorily. The only meaning which can he logically attributed to this contract is that the machine was to operate satisfactorily to the defendant. There was a serious conflict in the evidence as to whether the die did or could do good work. The respondents seem to claim that, if they could prove by the preponderance of the evidence that the machine in fact did good work, the contract has been fulfilled. This is not the law in this state. When such a contract is made, the article must be, in fact, satisfactory to the purchaser, or he is not bound to take it. His dissatisfaction must not be capricious or mercenary, nor result from a dishonest design to be dissatisfied in any event. It must be real and in good faith, but, if these requirements be satisfied, he is not bound to take the article. Exhaust V. Co. v. C., M. & St. P. R. Co. 66 Wis. 218, 28 N. W. 343; Warder, B. & G. Co. v. Whitish, 77 Wis. 430, 46 N. W. 540. The defendant offered to prove that it was not satisfied with the die, and also asked for an instruction embodying the law substantially as above stated; but both offers were rejected. Both of the rulings were erroneous.
The jury found that the die was approved and accepted by
By the Gourt. — Judgment reversed, and action remanded for a new trial.