McKinnon v. Vollmar

LyoN, J. I. At the close of plaintiffs’ testimony, the defendants moved for a nonsuit. The motion was denied. This ruling is claimed to be erroneous for the alleged reason that the only remedy of the plaintiffs is by a suit in — 87 — equity, and that, under the facts of the case, an action for money had and received, to recover the consideration paid for the land, cannot be maintained. The reason' thus assigned is unsound. It might be otherwise were this an action to rescind a conveyance of land, or to compel the execution of one. But this is not such an action. The only conveyance involved has already been rescinded, so far as the plaintiffs could rescind it, by the tender to the defendants of a sufficient conveyance of the land in question, and the deposit of such conveyance in court for the defendants. ^ The plaintiffs have done all they can do to place the parties in statu quo; and all the defendants have to do to accomplish that result is to accept such conveyance and refund the purchase money. There is nothing in the ■case which calls for the exercise of the peculiar and extraordinary jurisdiction of a court of equity. The controlling question in the case is whether the defendants ought to refund the consideration they received for the land. If they ought, such consideration can be recovered in an action for money had and received. Ela v. Am. M. U. Ex. Co. 29 Wis. 611. We conclude, therefore, that if the plaintiffs are entitled to recover such consideration they may recover the same in this form of action. II. We now proceed to consider whether the findings of the jury are supported by the testimony. That there is sufficient testimony to support most of the findings is too ■clear for argument. A few of them only may be open to some doubt as to whether the testimony sustains them. These will be briefly noticed. The sixth and seventh findings are to the effect that Greeves directed Kirwin to show Derfus the wrong land, and that he did so by mistake; that is ’to say, in the belief that he was showing defendants’ land. The finding is not that Greeves was mistaken in that particular, and it is quite — 88 — evident from the testimony that he was not. In this view of the findings, they are supported by the testimony. The thirteenth finding is that there is no pine timber on the lands sold by defendants to plaintiffs. This manifestly means no merchantable pine timber. There is considerable testimony that such is the fact. The 'fourteenth finding is that the purchase and sale of the land was made under a mistake on the part of all the parties, in that they supposed Derfus had been shown the land conveyed by defendants to MoKinnon and Redmond. It seems to us that this is the unavoidable inference from all the testimony. It certainly was a mistake on the part of plaintiffs; and, if not so on the part of defendants, it was something worse. It is proper to say, however, in this connection, that the evidence casts no imputation of actual' fraud upon the defendants. It contains no suggestion that they knew, when they made the conveyance and received the consideration, that the wrong lands had been shown Derfus; and they are not to be censured because they refuse to refund the consideration until their liability to do so shall be determined judicially. Our conclusion on this branch of the case is that all of the material findings are supported by the testimony. III. The only remaining question to be determined is, Do the facts found by the jury, and the undisputed facts not so found, support the judgment? We understand the law of this case to be that if the wrong land was pointed out to Derfus, whether intentionally or not, by an agent of the defendants, and the plaintiffs purchased believing that the right land had been shown Derfus, they may recover back the consideration paid therefor, although the defendants did not know, when the consideration was paid, that Derfus had been shown the wrong land, and although they made no representation to — 89 — the purchasers of the amount of pine on the land; but if the person so showing the land was- not the agent of the defendants, all other circumstances being as above supposed, the defendants are not liable in this action. This is the doctrine of Law v. Grant, 37 Wis. 548. Hence it becomes important to ascertain whether the person who showed Derfus the wrong land was or was not the agent of the defendants in that behalf. The jury did not find that Seibert was the agent of defendants to sell their land, but the- undisputed evidence establishes the fact that he was. The jury found that Seibert employed Greeves to show Derfus the land. Was Greeves the agent of the defendants ? The answer depends upon the question of Seibert’s authority to employ a sub-agent for that purpose. The rule is that an agent in whom is reposed some trust or confidence in the performance of his agency, or who is required to exercise therein discretion or judgment, has no authority to intrust the performance of those duties to another, and thus bind the principal for the acts of the latter, without the consent of his principal. Numerous cases illustrating this rule will be found cited in 1 Am. & Eng. Ency. Law, 368, note 4. On the other hand, an agent may appoint a sub-agent 'to do acts in the course of the agency which do not call for the exercise of judgment or discretion, but which are purely executive or ministerial, and the principal is bound by the acts of such subagent, Renwich v. Bancroft, 56 Iowa, 527; Lyon v. Jerome, 26 Wend. 485; Ewell’s Evans on Agency, *43, and cases there cited. In this case the showing of- the land to Derfus was a mere executive or ministerial act, requiring no exercise of judgment or discretion, and it was therefore entirely competent for Seibert to employ Greeves to perform it. It may be observed here that the defendants knew that Greeves had been selected by Seibert to show Derfus the — 90 — land, and made no objection thereto. Indeed, it seemed to be a very proper appointment, for Greeves bad been upon the land, and estimated the timber thereon, and of course knew the location thereof, while it does not appear that Seibert ever saw the land. For the above reasons it must be held that Greeves was the agent of the defendants for the purpose of showing the lands to Derfus, and the defendants are responsible for the manner in which he performed the duties of such agency. Greeves did not in person point put the land to Derfus, but he did so just as effectually as though he had gone upon the land in person and told Derfus that it was the defendants’ land for the purchase of which he was negotiating. He told Xirwin what particular tract of land he was to show Derfus, and Xirwin showed him such tract as he was directed to do. Thus Xirwin was the mere instrument of Greeves, and his act in thus pointing out the land was, in substance and legal effect, the act of Greeves, the agent of the defendants. Hence there is no question in the case as to whether Xirwin was or was not the agent of the defendants in what he did. Literally obeying the orders of Greeves, as he did, his acts were the acts of Greeves. An agent who, because of the trust and confidence reposed in him by his principal, cannot bind his principal by the acts of a subagent, may still employ another to do some specific act in the business of his agency, and, if such other do that act as directed, the principal is liable — not because the person performing the act is his agent, but because the act is the act of his agent, who directed it to be done. It follows from the foregoing views that the defendants are liable for the act of their agent in thus showing Derfus the wrong land, although he did so through the instrumentality of Xirwin. IY. Rut the judgment may be upheld on another ground. The jury found that the defendants made a statement to — 91 — Berfus before the sale as to how much pine timber there was on the land, that the plaintiffs relied upon such statement in making the purchase, and that the same was false. The only statement on that subject mentioned in the testimony is that there were at least 2,000,000 feet of pine timber on the land; hence it must be inferred that this is the statement which the jury found was made by the defendants to Berfus. Under the circumstances of the case, the plaintiffs are excusable for not verifying the accuracy of such statement by actual inspection of the land; and under the above finding, without regard to the question of agency, the plaintiffs are entitled to recover. And it is quite immaterial that the defendants did not know at the time that such statement was false. Miner v. Medbury, 6 Wis. 295. By the Court.- — The judgment of the circuit court is affirmed.