Saveland v. Green

40 Wis. 431 | Wis. | 1876

Lyon, J.

I. It does not appear that the defendant ever expressly authorized the plaintiff to execute the charter-party in his own name, or that he knew that the plaintiff had done so until after the latter had paid Jones & Co. the damages awarded them for a breach thereof. But we regard this circumstance as quite immaterial. By making the contract in his own name, the plaintiff became liable to Jones & Co. as principal, at their option; but if he had authority to make the contract, he thereby became, as to the defendant, merely a surety for its performance. If an agent who makes a contract for his principal, sees fit to become surety for the performance of such contract by the latter, no good reason is' perceived why he may not do so, and become thereby entitled to all of the legal rights of a surety, although the consent of the principal thereto may not have been first obtained. If the agent is compelled to pay the damages resulting from a breach of such contract, because'of his suretyship,, one of those rights is to recover of his principal the amount so paid for him.

If the plaintiff had authority to charter the defendant’s vessel to Jones & Co., or, wbat is equivalent thereto, if be made the contract without such authority, and the defendant subsequently ratified it, Jones & Co. had a valid cause of action against the defendant to recover the damages resulting from the breach of such contract. Stowell v. Eldred, 39 Wis., 614, and cases cited. It would seem to follow, that, under the same circumstances, the defendant would be liable over to his surety, the plaintiff, after the latter had been compelled to pay such damages.

II. It becomes necessary, therefore, to determine whether the defendant, either by previous authority conferred by him, or by subsequent ratification, became bound by the contract made by the plaintiff with Jones & Co.

On the trial, the learned counsel for the plaintiff did not attempt to show that either Citterly or Bohne had previous authority from the defendant to negotiate for the charter of his vessel, but persistently, and with considerable success, objected to the admission of any testimony on behalf of the defendant tending to show what authority the defendant had given in that behalf. Thus the plaintiff’s case was rested on the proposition that the defendant had ratified the contract for the charter of his vessel, and thus became bound by it, just as he would have been bound had he previously authorized the plaintiff to enter into such a contract. The learned circuit judge placed the case upon the same ground, by instructing the jury that if there was not such ratification by 'the defendant, the plaintiff could not recover. Hence the question is narrowed to one of ratification alone.

The rule as to what amounts to a ratification of an unauthorized act, is elementary, and may safely be stated thus: When a person assumes in good faith to act as agent for another in any given transaction, but acts without authority, whether the relation of principal and agent does or does not exist between them, the person in whose behalf the act was done, upon being fully informed thereof, must, within a reasonable time, disaffirm such, act, at least, in cases where his silence might operate to the prejudice of innocent parties, or he will be held to have ratified such unauthorized act.

In this case, if the defendant failed to disaffirm the contract made by the plaintiff with Jones & Co. when he was informed of it by the plaintiff’s despatch to Bohne, his silence might have been injurious to the plaintiff; for had the latter been promptly informed that he had no authority to charter the defendant’s vessel, probably he could have chartered other vessels in her place for Jones & Có. at the same rates, or made some other arrangement with that firm to protect himself from loss because of such disaffirmance. It should be observed that there is no room to doubt that the plaintiff believed he had authority to charter the defendant’s vessel, and that he acted in the matter in perfect good faith.

In addition to the direct testimony tending to show that the defendant failed to disaffirm the act of the plaintiff when informed that he had made the contract with Jones & Co., there was some testimony tending to show that, about the time the vessel was chartered, the defendant said to a witness that he had chartered the “ Sawyer ” to arrive at Milwaukee at ten cents.

We think the testimony on that subject was sufficient to authorize the judge to submit the question of ratification to the jury. This was done with an instruction, in substance, that if the defendant understood the contents, force and effect of the telegram from plaintiff to Bohne, and did not then, or within a reasonable time, protest against and repudiate the act of the plaintiff, it was a ratification of such act, and he was liable on the charter-party as a principal. It seems to us that this instruction is in harmony with the rule on that subject above stated.

The jury, under such instruction, having found for the plaintiff, it has become a verity in the case that the defendant ratified the contract of the plaintiff with Jones & Co., and is liable upon it, tbe same as tbougb tbe plaintiff bad been duly authorized by tbe defendant, in tbe first instance, to make sucb contract.

III. In tbe foregoing discussion it is assumed that tbe telegraphic despatch from Bohne to tbe plaintiff was properly in evidence; and upon that assumption tbe remark is based that tbe plaintiff executed tbe charter-party in good faith.

The telegram received by tbe plaintiff at Milwaukee from Bohne was read in evidence, against tbe objection of tbe defendant; and the message delivered in tbe office at Buffalo was not produced, or its absence accounted for.

Tbe learned counsel for tbe defendant insist that tbe latter is tbe original, and should have been produced; and that tbe message received by the plaintiff was but secondary evidence, at most, and could not properly be received until tbe loss of tbe original bad been proved.

In a late treatise on tbe subject (Scott & Jarnagin on tbe Law of Telegraphs), it is said that “ telegraph messages are instruments of evidence for various purposes, and are governed by tbe same general rules which are applied to other writings.” (§ 340.) Also, that “ tbe original message, whatever it may be, must be produced, it being tbe best evidence; and in cases of its loss, or inability to produce it from other cause, tbe next best evidence tbe nature of the case will admit of, must be furnished. If there is a copy of the message existing, it should be produced; if not, then the contents of the message should be shown by parol testimony.” (§ 341.) We believe tbe above extracts contain a correct statement of tbe law, and so bold.

It only remains to determine which was the original message, that delivered to tbe telegraph company by Bohne at Buffalo, or that received by tbe plaintiff from tbe telegraph office in Milwaukee.

Discussing a similar question in Durkee v. Vt. C. R. R. Co., 29 Vt., 127, Redfield, Ch. J., stated tbe law as follows: “In regard to tbe particular end of tbe line where inquiry is first to be made for tbe original, it depends upon wbicb party is responsible for its transmission across tbe line, or, in other words, whose agent tbe telegraph is. Tbe first communication in a transaction, if it is all negotiated across tbe wires, will only be effective in tbe form in wbicb it reaches its destination. In such case, inquiry should first be made for tbe very despatch delivered. In default of that, its contents may be shown by tbe next best proof.” (p. 140.) To tbe same effect are Trevor v. Wood, 36 N. Y., 307, and Dunning v. Roberts, 35 Barb., 463. In Howley v. Whipple, 48 N. H., 487, it was sought to prove that a person was in Montreal on a given day, by showing that a telegram, purporting to have been sent by him from that place on that day, was received at a town in New Hampshire. It was held that tbe message received did not prove tbe fact that tbe supposed sender thereof was then in Montreal. Tbe decision was doubtless correct. But tbe court in that case recognized tbe correctness of tbe rule laid down in tbe cases above cited.

Matteson v. Noyes, 25 Ill., 591, Kinghorne v. The Montreal Telegraph Co., 18 Upper Canada (Q. B.), 60, and Williams v. Brickell, 37 Miss., 682, are cited by counsel for defendant as authorities for tbe opposite doctrine. In Matteson v. Noyes, tbe telegram purported to have been sent by tbe appellee to a witness, and was offered in evidence by tbe appellant, and admitted. Its contents or purport is not given in tbe report of tbe case, nor are we informed of tbe purpose for wbicb it was offered. It does not appear that its admission in tbe court below bad any influence on tbe decision of tbe case by tbe appellate court. For these reasons tbe case as reported is valueless as authority. Kinghorne v. The Montreal Tel. Co. was an action against tbe company for failure to deliver a message, and hence is not in point. It is quite true, however, that we find language in tbe opinions in both tbe above cases wbicb go far to sustain tbe views of counsel for tbe defendant; yet tbe cases cannot properly be regarded as authority in a case like this. In the case in 37 Miss., supra, parol proof was received of the contents of a telegraphic message, without previous proof of the loss of the original message. This was very properly held to be error. The case is not an authority either way on the question before us.

After a careful consideration of the question, and after full examination of all the adjudications we can find bearing upon it, we have reached the conclusion that the law applicable to this case is correctly stated by Judge Redfield in Durkee v. Vt. C. R. R. Co., supra.

The same principle is also laid down in Scott & Jarnagin on Telegraphs, as follows: “ § 345. In all cases where the company can be considered as the agent of the sender of the message, in controversies arising out of the communication by telegraph between the sender and the person to whom the message is addressed, the message received by such person must be regarded as the original. If it differs from the message delivered for transmission, by which the sender has suffered damage, he must look to his agent, the telegraph company, for indemnity. In such controversies between the sender and receiver, the message received is the best evidence.”

This brings us to determine whether, in the present case, the telegraph company can properly be considered the agent of the defendant for the transmission of the message from Bohne to the plaintiff. We think it must be held that the company was the agent of the defendant for that purpose, on either of two grounds: 1. Oitterly was the agent in fact of the defendant to charter his vessel for a load of wheat from Milwaukee to Buffalo, at ten cents per bushel, but on condition that a cargo of coal for Milwaukee could be procured for her at Buffalo — the vessel then being on her way to the latter port. There is no doubt whatever that Oitterly might lawfully employ a vessel-broker to aid him to negotiate such charter. Story on Agency, § 201. He employed Bohne for that purpose, who thereby also became the agent of the defendant. Bohne procured the vessel to be chartered at the authorized rate, but disregarded the condition concerning the cargo of coal. His act,'although not a compliance with the terms of his agency, was, nevertheless, within the scope of his authority, and hence was binding upon the defendant. Eor the rule is elementary, that the principal is bound by the unauthorized act of his agent, if the act is within the scope of the agency. It follows that the message sent by Bohne to the plaintiff directing him to charter the defendant’s vessel, was the message of the defendant, and the telegraph company was his agent for the transmission thereof. 2. The same result follows the ratification by the defendant of the contract made by the plaintiff for the charter of the vessel. The message from the plaintiff to Bohne, and the remark of the defendant when he saw it, show that the plaintiff knew or believed that Bohne had telegraphed authority to the plaintiff to charter the vessel. It is settled by the verdict that the defendant did not disaffirm the act of the plaintiff in making the contract, and there is no proof of any special disaffirmance by him of the act of Bohne which authorized plaintiff to do so. As the case stands, it must be held that defendant also ratified the telegram sent by Bohne to the plaintiff; and by so doing he made it his own, precisely as it would have been had he, in the first instance, authorized Bohne to send it. Story on Agency, § 249.

We conclude that the telegraph company was the agent of the defendant for the transmission of the message of Bohne, and hence, that the message received by tire plaintiff is the original, and was properly received as evidence in the case.

IY. The defendant offered testimony to prove that after he and Citterly left the office of Bohne on the occasion when the plaintiff’s telegram was shown them, the defendant, in conversation with Citterly alone, disaffirmed and repudiated the act of the plaintiff, and declared that be would not send the vessel unless the cargo of coal to that port could be procured.The court refused, under objection, to allow the witness Citterly to testify thereto, but subsequently the defendant so testified without objection. We think the rejection of this testimony was not error. It related not to transactions pertaining to the res gestae. The disaffirmance, to be effectual, should have been made to the plaintiff, or, at least, to Bohne.

V. The following instruction was proposed on behalf of the defendant, and refused: “Admissions not being under oath, and liable to be misunderstood,-as against sworn testimony, are considered very feeble evidence, unless fully corroborated.” The instruction was properly refused. When a deliberate admission of a party against his own interest is satisfactorily proved, it is not necessarily feeble evidence, and does not require corroboration. It may be that the instruction was intended to refer to the proof of admissions, and not to the admissions themselves. Conceding that the instruction admits of that interpretation, we still think it was properly refused. The weight to be given to testimony of mere admissions is to be determined by the jury; yet it may be proper for the court to say to the jury that such testimony is usually unsatisfactory and should be received with great caution. But it would scarcely be correct to say in every case, without qualification or exception, that it is very feeble testimony unless fully corroborated ; for cases may readily be supposed, where an admission might be satisfactorily proved by the uncorroborated testimony of a single witness.

VI. When the proceedings before the board of arbitrators of the chamber of commerce, and the award of the board, were read in evidence, the Counsel for the plaintiff stated that he offered - them merely for the purpose of showing that the plaintiff paid the amount of money named in the award in good faith and pursuant to the award. We think the testimony was improperly admitted. The good faith of the plaintiff in paying Jones & Oo. tbeir damages resulting from tbe breach of tbe charter-party, is not in issue, but only Ms legal liability to pay such damages. Tbe purpose assigned was therefore insufficient to authorize the admission of the testimony. Considered as testimony in the base generally (and it was probably so received), such testimony was clearly inadmissible under the circumstances., even if admissible in any event against a third party — a point which we do not here decide. It was not accompanied by proof of notice to the defendant of the proceedings in the chamber of commerce, or of any fact in any manner connecting him with those proceedings. The testimony is no broader than the averment in that behalf which was stricken from the complaint. (36 Wis., 612.) The averment being irrelevant and redundant, the testimony to support it, and which is not admissible for any other purpose, is necessarily immaterial. The infirmity which excluded the averment from the pleading, should also have excluded the testimony from the consideration of the jury.

But although the court erred in admitting the chamber of commerce proceedings, we think the error could not have prejudiced the defendant. The award could only affect the amount of damages, and in that respect the verdict corresponds with it. But independently of the award, on the undisputed evidence, the verdict must necessarily have been the same; for it is conclusively proved that the cause of action on the charter-party accrued September 15th; that the rate of wheat freights from Milwaukee to Buffalo on that day was 13¿* cents per bushel; and that the “J. D. Sawyer” was chartered for 40,000 bushels. Had the circuit judge directed the jury, in case they found for the plaintiff, to assess his damages at $1,400 for the defendant’s failure to fulfill the terms of the charter-party (that being the sum paid by the plaintiff to Jones & Oo.), on the testimony in this record we could not disturb a verdict rendered pursuant to such direction.

Although not considered in their order, it is believed that tbe foregoing observations dispose of all the material errors alleged by the appellant. Finding no error in the record which conld have prejudiced the appellant, the judgment of the circuit court must be affirmed.

By the Cov/rt. — Judgment affirmed.