Williamson v. Tyson

COLEMAN, J. Suit by appellant to recover upon a note given for the purchase of land. The defendant as an answer to the demand pleaded two special pleas, in which it is averred that the defendant purchased the lot of land through one Thomas S. White, who was the agent of plaintiff, or professed to be the agent of plaintiff, and had authority to sell the lot, and that he, the defendant, was induced to make the purchase by the false and fraudulent misrepresentations of said White. The facts and circumstances constituting the alleged fraud are set out in the pleas. The plaintiff demurred to each of those pleas, assigning various grounds of demurrer, all of which were overruled, and this ruling is assigned as error. The general rule of law, that one who deals with an agent, is bound to know the extent of his authority is fully recognized, and one absolutely necessary to the protection of a principal in all actions brought against him founded upon contracts made by an agent. The doctririe is equally as well established and rests upon sound principles, that a principal who seeks, to avail himself of a contract made by another for him, whether by an appointed or a self-constituted agent, is bound by the representations made, and methods employed by the agent, to effect the contract. We think these prin-' ciples sustained by the following authorities: Elwell v. Chamberlin, 31 N. Y, 611, 619; Atwood v. Wright, 29 Ala. 346; Haskell v. Starbird, 152 Mass. 117; 23 Amer. St. Rep. 809; Busch v. Wilcox, 82 Mich. 336; 21 Amer. St. Rep. 563; Griswold v. Gebbie, 126 Pa. St. 353, 12 Amer. St. Rep. 878, and note. The plea alleges that White represented that McBryde was solvent. This" is the repre [654] sentation of a fact, and not the expression of an opinion. There is no demurrer directed to that part of the plea, which avers that he represented, that the notes would be paid when they became due, and we do not decide as to the character of such a representation. Under section 2690 of the Code‘.‘no objection can be taken or allowed, which is not distinctly stated in the demurrer.” We hold that the plea was not subject to any of the grounds of demurrer which were assigned, and that the court did not err in overruling them. The principles of law invoked by the appellant, that agency cannot be established by the declarations of a party would be pertinent and conclusive,- if the-principal was defending against a contract alleged to have been made by his agent, but here the principal is suing upon the contract, and thereby ratifying the methods used and inducements held out to effect the contract. Tho theory of the defense as set up in the plea is, that the lot was purchased through White, as the agent of the owner of the lot, and the evidence of the defendant Tyson tends to support this defense. The suit upon the contract is a ratification of tho declarations and methods used to induce the contract. These declartions we think also admissible as res gestae. Of course, if the jury should find that White represented Tyson in the purchase of the lot, and not the plaintiff, the owner of the lot, and made no statements or representations as the agent of the plaintiff to induce Tyson to make the purchase, and what was said in regard to McBryde by White was as agent or .friend of Tyson, the defense would fail, and the plaintiff would be entitled to recover. This is the question in the case, and it must be determined by the jury. There are some other assignments of error upon the ruling of the court in the admission and exclusion of evidence, which have not been insisted upon in argument, and which we presume have been waived. The charge given bv the court, may be somewhat indefinite in its terms, but the principle of law asserted is in accordance with our views of the law. The first charge requested by thé plaintiff was properly refused. It was calculated to mislead and ignored material evidence in the case. Whether White had authority from Williamson to sell the lot or not, if the sale [655] was effected by White as his agent, a suit upon the contract is a ratification or adoption of his agency.- The second charge requested was properly refused . There was evidence tending to show that White acted as the agent of the plaintiff in effecting the sale upon which the suit was brought. The third charge requested is incorrect in law, invades the province of the jury, and assumes to determine the question at issue. The charges given at the request of the defendant with the exception of charge number five accord with the rules herein declared, and are free from error. We are of opinion that the court erred in giving charge No. 5. In the first place it gives undue prominence to the single fact as to who paid White for his service. In the second place, the charge was calculated to induce the jury to draw an unauthorized inference from the evidence, in regard to the fact of the payment of White. The uncontradicted evidence shows in point of fact that White had no authority to sell the lot. The plaintiff owned the lot. Brenneman was a real estate agent, and had the lot in charge to sell. That White was also a real estate agent. That it was the custom of real estate agents, when one had a lot to sell, and another procured a purchaser, the commissions for selling were divided, between the two agents, and that under this rule Brenneman, the agent, who had the lot for sale, divided his commissions with White. This is -the entire evidence in in regard to the payment of White, and certainly there is nothing here, which would, in any manner, authorize the jury to infer, that because White was not paid by Tyson, or that because White was paid by Brenneman, he was, therefore, the agent of the plaintiff. The charge was calculated to mislead the jury, was erroneous in the inference thej’' were impliedly instructed to draw from the facts, and should not have been given. Reversed and remanded.