Heath v. Paul

LyoN, C. J. I. The learned circuit judge instructed the jury that the facts that Roth had the management of the defendant’s store, kept- the accounts thereof, was authorized to draw checks on the State Bank for the price of goods and expenses of the store, and to make overdrafts on that bank, and that defendant sanctioned his mode of dealing with the National Bank so far as he was apprised of it, were insufficient to prove that defendant gave Roth power to borrow money generally or of plaintiff. The instruction is correct. Defendant was careful to withhold from Roth the power thus to borrow money. True, he allowed him at times .to make necessary overdrafts on the [536] State Bank to pay for goods, but tbis raised no presumption whatever of Roth’s authority to borrow money generally of other parties. Neither did the transactions with the National Bank. The judge so instructed the jury. The jury were also correctly instructed that there was nothing in the nature of Roth’s agency, so far as it was shown by direct testimony, which rendered it necessary that he should have power to borrow money, or from which any inference of the existence of such power could properly be drawn. Thus far we think the instructions are entirely accurate. II. The court submitted the first question in the special verdict — that is, whether the defendant conferred upon Roth power to borrow money of the plaintiff on his credit — on the testimony of certain witnesses, all of whom had loaned Roth money on checks on the State Bank, signed as the checks in suit are signed. The testimony of these witnesses bearing upon the question was confined to alleged admissions by defendant, made to them after Roth’s defalcations were discovered and he had been driven from the store by defendant. Of course, all this occurred long after the plaintiff had made the loans to Roth. Hence we have here no question of estoppel, and no claim that the defendant ever held out Roth as his agent to borrow money, or clothed him with apparent authority to do so, with or without the knowledge of the plaintiff when she made the loans to Roth. We have only the- question, Did the defendant authorize Roth to borrow the money of plaintiff which is sought to be recovered in this action? The witnesses who testify to such admissions by defendant are Bacheller, Thomas, Dowling, and H. C. Heath, plaintiff’s husband and agent, who made the loans in question for her. The substance of the testimony of each of the three witnesses first above named is to the effect that defendant said to him that his checks were all right. The learned circuit judge thus summarized and stated their tes [537] timony. Thereupon the court left it to the jury to find whether defendant meant by those words to say, “Your checks are all right because Roth had authority to borrow the money,— to make the checks under the circumstances.” That is to say, the jury were allowed to infer from the language used by defendant that he had given Roth general authority to borrow money. This language, without the aid of any other facts or circumstances tending in the same direction, does not authorize any such inference, and it was error to permit the jury to make such inference therefrom. Probably testimony of those admissions was admissible as tending to prove the authority claimed, but standing alone, as they substantially do, they are entirely insufficient to support a finding that such authority existed. Proof of a fact may tend to show the existence of another fact, indeed may preponderate over all testimony to the contrary, and yet be entirely insufficient to prove such other fact. Gores v. Graff, 77 Wis. 174; Dunbar v. McGill, 64 Mich. 676. This is such a case. Moreover, the drift of all the testimony is that, although defendant expressed his willingness to pay the particular checks of each witness, he constantly denied the authority of Roth to borrow money in his name. If the rule of evidence which was applied on the trial should prevail, business could not be done by agents without danger of financial ruin to principals should their agents, as in this case; prove dishonest, no matter how carefully the authority of the .agents might be limited. The testimony of the plaintiff’s husband and agent, which will presently be stated, is weaker than that of the other witnesses, as tending to show that Roth had authority to borrow money for and on account of defendant. Our "conclusion is that there was no sufficient testimony to send to the jury the first question submitted to them. III. The second question submitted to the jpry, which is, Did the defendant ratify the loaning of money by plaintiff to Roth? was submitted to the jury on the testimony of [538] H. 0. Ileatb only. There is no other testimony in the case bearing upon that question. The substance of his testimony *is that in March, 1889, after defendant had learned of Roth’s dishonesty, in a conversation between them defendant said to Heath, “ When the matter first came up I made up my mind I would pay all these checks, and then, after deliberating on it, I thought I would wait till the books were examined before they were paid.” This was after defendant had denied his liability and refused to pay. In a later conversation defendant said either he or the bank was liable for the money, and that “ I expect to pay it if it went to the store to pay for goods.” The court submitted it to the jury to find whether this was a promise to pay plaintiff, and hence a ratification of the act of Roth in borrowing the money, which, of itself, would render defendant liable therefor. We cannot understand the mental process which finds in the words, “ I expect to pay it if it went into the store to pay for goods,” an absolute, promise to repay the loan, especially when the defendant steadily denied both the authority of Roth and his own liability. There is no sufficient testimony of such alleged ratification to send that question to the jury. By the Oourt.- — • The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.