Wilson v. McCarthy

Mr. Justice Bean delivered the opinion of the court. It is needless to detail the evidence in the case. It is sufficient to say that the same sustains the claim of plaintiff. That McCarthy misrepresented the facts to plaintiff is not seriously questioned. It clearly appears that McCarthy and Bodimer acted together in the interests of defendant Nellie M. Rogers, and that the three made substantially the same statement to plaintiff in regard to the land. The question is: Can she retain the fruit of such deceit! 1. The actual fact of conspiring may be inferred from circumstances, and the concurring conduct of the defendants need not be directly proved: State v. Lewis, 51 Or. 467, 469 (94 Pac. 831); Porter v. O’Donovan, 65 Or. 1 (130 Pac. 393). 2. If the contract was made by McCarthy who, in order to induce plaintiff to make the exchange, made [502] representations which were known to him to be false and upon which plaintiff relied to her injury, the defendant Nellie M. Rogers, by availing herself of the benefits of the transaction, is bound by the representation whether McCarthy was her appointed agent or not. Copeland v. Tweedle, 61 Or. 303 (122 Pac. 302); Williamson v. Tyson, 105 Ala. 644 (17 South. 336, 338). The doctrine is well established and rests upon sound principles of law that a person who seeks to avail himself of a contract made by another for him, whether by appointment or by a self-constituted agent, is bound by the representations made and the methods employed by the agent to effect a contract. Defendant Nellie M. Rogers cannot ratify a part of the transaction negotiated by McCarthy and repudiate the same in part: Grover v. Hawthorne Estate, 62 Or. 65 (116 Pac. 100, 121 Pac. 804, and cases there cited); Elwell v. Chamberlin, 31 N. Y. 611, 619; Haskell v. Starbird, 152 Mass. 117 (25 N. E. 14, 23 Am. St. Rep. 809); Busch v. Wilcox, 82 Mich. 336 (47 N. W. 328, 330, 21 Am. St. Rep. 563); Griswold v. Gebbie, 126 Pa. 353 (17 Atl. 673, 12 Am. St. Rep. 878). The findings and decree of the trial court were eminently proper, and the decree should be affirmed. It is therefore so ordered. Affirmed. Mr. Justice Eakin and Mr. Justice McNary concur. Mr. Chief Justice McBride did not sit.