Kasson v. Noltner

Lyon, J. 1. The rule of law which controls the decision of this case is, that “ a principal is responsible, either when he has given to an agent sufficient authority, or when he justifies a party dealing with his agent in believing that he has given to the agent his authority.” This rule, says Professor Parsons, may be called the foundation of the law of agency. 1 Pars, on Con., 44. And Judge Story, in his commentaries on the law of agency, lays down the same rule more elaborately, and says it is founded in the maxim of natural justice, that he who has, although innocently, enabled any person to [651] do an act which anight be injurious to himself or to another innocent party, shall himself suffer the injury, rather than the innocent party who has placed confidence in him. § 127. This rule was fully recognized and applied by the learned circuit judge in his change to the jury, and is, so to speak, the key-note of the charge. The rule was stated in different forms, but always with clearness and accuracy, and nothing to the contraiy appears in the charge. He also, at the request of counsel for the plaintiffs, gaye the jury the rule of Strachan v. Muxlow, 24 Wis., 21. Three instructions proposed on behalf of the plaintiffs were refused. Two of these contained a direction to the jury to find for the plaintiffs; and the third is to the effect that, in-order to find that Clark had a light to apply his indebtedness to the defendant in payment of the note in suit, they must find that the plaintiffs are liable for the balance of Clark’s indebtedness to the defendant after deducting the amount of the note. The last instruction was properly refused, for it contains no correct test of the authority or apparent authority of Clark to collect the note; and the other two instructions were properly refused if there was any evidence of Clark’s authoiity to collect the note, which ought to have been submitted to the jury. It is quite unnecessai’y to state the instructions more fully. Enough has been stated to show that none of them are erroneous if there was any evidence to go to the juiy on the question whether, from the course of dealing between Clark and the plaintiffs, known to the defendant, the latter had good reason to believe that Clark had authority to collect the note. We regard the transaction between Clark (or his agent Hewitt) and the defendant, in respect to the note, as equivalent to the collection thereof. Without recapitulating the propositions of fact contained in the statement of the case, which the evidence tends to prove, we have no difficulty in holding that there is evidence [652] tending to show that the defendant, from his knowledge of such course of business, had good reason so to believe. Hence, that question was properly submitted to the jury, and we cannot review their finding upon it. 2. The learned counsel for the plaintiffs places some reliance upon the clause in the note that no credit shall be allowed unless indorsed on the note by the payee. We think the clause is of no importance in the case. Authorized payments on the note must be allowed by some process, and it would be an unnecessary circumlocution of action to drive the maker into a court of equity to compel the payee to make the proper indorsement of payments, before they can be allowed in an action on the note. The more simple and reasonable process is to allow them in a suit upon the note, even though not indorsed thereon by the payee. To do so will be no undue strain, we think, upon the functions of a court of law. 3. It only remains to consider briefly two exceptions to the rulings of the court overruling objections made on behalf of the plaintiffs to the admission of testimony. The witness was a former employee of Clark in the Madison agency, and the testimony to which the exceptions relate is as follows: “ Q. Did Mr. Clark, while in the Singer office at Madison, and in charge of it, say anything to you or in your hearing in respect to the payment of the note in dispute? A. * * * I told Clark that defendant wanted his note. ITe said defendant would have to wait, as he had not then the mone y to send in and get the note. Q. Do you know what Mr. Hewitt’s connection with the agency here in Madison was? A. Clark informed me that he had employed Hewitt as collector and book-keeper.” This testimony, so far as it is of any importance in the case, relates to facts abundantly proved by other and competent evidence, and concerning which there is no dispute. Should it be conceded that it was error to admit the testimony, it is not possible that the plaintiffs were injured [653] thereby, and benee, the error will not work a reversal of the judgment. Error is also assigned upon the admission of the answer to an interrogatory contained in' the deposition of a witness, taken at the instance of the defendant, and read on the trial. The interrogatory was objected to at the taking of the deposition, but, the objection was not made to the court when the deposition was read. There is, therefore, no exception to support this assignment of error. Hill v. Sherwood, 3 Wis., 343. See also Judge Dixon’s note to Sayles v. Stewart, 5 id., 13. By the Court. — The judgment of the circuit court is affirmed.