Tondro v. Cushman, 5 Wis. 279

Tondro v. Cushman

5 Wis. 279 | Wis. | 1856

By the Court,

Cole, J.

We do not suppose it is necessary to cite authorities in support of the general and well settled principle, that a tenant cannot dispute the title of his landlord ; and this, it appears to me, is what the defendant below attempted to do in his second plea. As I understand the matter of defence *288set up in tbis plea, it is, tbat at tbe time tbe defendant wa's let into possession of tbe demised premises, Cusbman, tbe landlord, had no legal title to them, and tbe defendant, though he entered into possession under Cusbman, only recognized him as landlord until be could buy up tbe outstanding title in King. For tbe defendant alleges in substance in tbis plea, tbat at tbe time tbe plaintiff demised tbe premises to him, be represented tbat be was not tbe legal owner of, and bad no title to them ; but tbat tbe legal title was in King, and that in fact tbe plaintiff bad no right or title to tbe premises, except a bare possession; and further, tbat tbe defendant continued to occupy the premises as tenant of tbe plaintiff, if at all, no longer than tbe 18th day of October, A. D. 1850, when, for a full and adequate consideration, King conveyed tbe premises to him; and tbat tbe defendant then settled with, and paid tbe plaintiff tbe sum of fifty-five dollars, in full discharge of all rents due up to tbe time of buying in tbe outstanding title in King; and notified the plaintiff tbat be bad become tbe owner of tbe premises, and should, thereafter, bold them adversely to bis claims, rendering no rent therefor.

It is not very clear what idea tbe pleader bad in bis mind when be was framing tbis plea. Tbe first part of it seems to deny as distinctly as language can, tbat tbe lessor, Cusbman, bad any title in tbe demised premises, at tbe time of making the lease; a matter which tbe defendant, by an elementary rule of pleading, was estopped from denying; while tbe subsequent matter, tbat tbe defendant continued to occupy tbe premises as tbe tenant of tbe plaintiff, if at all, no longer than until be acquired tbe outstanding title, in effect amounts to a plea of tbe general issue.

But whatever-construction is given to tbe plea, we think tbat it is defective, and tbat tbe Circuit Court properly sustained the demurrer taken to it.

Another error relied on, is tbe refusal of tbe Circuit Court to give to tbe jury tbe following instruction asked by tbe defendant.

“ 1. If the jury find from tbe testimony, tbat before tbe 18th October, 1850, tbe plaintiff bad represented to defendant tbat E. P. King was tbe owner of tbe premises leased, and fully author*289ized to sell and convey the same by deed, and that the defendant relying upon such representation, did on that day in good faith and with plaintiff’s knowledge, purchase the premises of King, and then and there become the legal owner thereof for a valuable consideration, the plaintiff making no objection thereto, then the plaintiff is not entitled to recover rent for said premises after said 18th October, 1850; and that in this respect the lepresenta-tions and knowledge of the plaintiff’s agent, thereto lawfully authorized, are the same as the representations and knowledge of plaintiff.”

Admitting that the first branch of this instruction embraces a correct legal proposition, yet certainly it has no application to the case established by the testimony ; for the evidence fails entirely to show that the plaintiff Cushman, made any representations whatever to Tondro, about the title to the property being in King, either before or after the demise, or that he had any knowledge of the purchase of the outstanding title when made by the defendant. Oooper as the agent of the plaintiff, leased the premises to the defendant, and he it was who made the representations about the title being in King.

But it is contended that the representations of the agent Cooper in reference to the title, must be considered as the representations of his principal, Cushman, and so undoubtedly they must,, if Cooper had authority to make them. Whatever an agent does within the scope of his authority, binds his principal and is deemed his act. Had Oooper any authority to make these declarations about the title being in King? He states in his testimony that he was the plaintiff’s agent to let or sell the premises, and that while acting as such agent (the defendant talked of buying the premises), he told the defendant that the title to the premises was in E. P. King, and that if defendant bought, a part of the purchase money was going to King, and that the deed would come from him; that King held the title to secure him for money borrowed, &c.; that subsequently, on or about the 18th of October, 1850, King and Tondro came to his office, and defendant told him that he had bought the premises of King and had come to fix it up : that two hundred dollars was then paid * *290King by Tondro in presence of tbe witness. From tbis evidence as to tbe extent of tbe power of Cooper, it appears tbat be was only authorized to lease or sell the property. Tbat was the scope of bis authority. Thus far be could bind bis principal by bis acts; but could be bind him by unauthorized representations about tbe title? Was tbe authority to make these representations necessarily included within tbe terms of bis appointment ? Can an agent, authorized merely to sell or rent real estate, make representations about tbe title which shall bind tbe principal ? We think not. In one sense, tbe last branch of tbe instruction was proper enough. Tbat tbe representations and knowledge of tbe agent thereto lawfully authorized, are tbe same as tbe representations and knowledge of tbe plaintiff. That is, representations which the agent was by his appointment authorized tó make, bind tbe principal. No doubt of it. But what proof was there tbat Cooper was authorized to make tbe representations be did about tbe title? Nothing further than tbat be bad power to lease and sell tbe property. But tbe more obvious meaning of tbe instruction is, and probably tbis was tbe sense in which it was understood by tbe court, tbat it appeared from Cooper’s testimony as to tbe extent of bis agency, tbat be was lawfully authorized to make these representations about tbe title, and tbat such representations bound tbe plaintiff. In tbat light, tbe instruction was properly refused.

It is believed tbat these observations sufficiently dispose of all questions arising upon tbe refusal of tbe Circuit Court to give tbe several instructions asked for by tbe defendant below. Tbe conclusion to which we have arrived is, tbat tbe judgment of the Circuit Court must be affirmed, with costs.