Oliver v. Morawetz

Putney, J. 1. The findings of the jury are plainly supported by the evidence, and the court properly refused to set aside the verdict on the motion of the defendant, as being against the weight of evidence. If the defendant acted and contracted avowedly as the agent of his co-owners of the property to be sold, who were known as principals, his acts and contracts within the scope of his authority would be •considered the acts and contracts of the principals, and. would involve no liability on the part of the defendant, Morawetz, as their agent; for the presumption is that an agent always intends to bind his principal, and not himself, although he may pledge his own private credit, and obligate himself to the performance of a contract which otherwise would devolve on his principal. Under the facts in this case, the defendant was, we think, properly held liable, and the recovery, beyond any fair question, is right, and should be affirmed. It was found, in answer to the first question submitted to the jury for a general verdict, that the defendant represented to Oliver, the plaintiff, that he (Morawetz) was authorized to sell the real estate in question upon the terms stated in the receipt in evidence. After the plaintiff had performed his undertaking and procured a purchaser, the defendant, as well as his co-owners, refused to sign the paper [338] or carry out and conclude the sale. He testified at the trial,, in most explicit terms, that he was not authorized to sell the property. He had induced the plaintiff to act in the premises, and procure a purchaser upon the specified terms. He was therefore bound to make the agreement good, or be-responsible for the consequences. Mechera, Agency, §§ 541, 542. He must be regarded as insuring the plaintiff against the consequences arising from the want of such authority, namely, the loss of his commission thus earned, by reason of the defendant’s want of authority to bind his co-owners. Kroeger v. Pitcairn, 101 Pa. St. 311. In that case the general rule was stated to be that “ whenever any party undertakes to do any act as the agent of another, if he does not possess any authority from the principal therefor, or if he-exceeds the authority delegated to him, he will be personally liable to the person with whom he is dealing for and on account of his principal.” Story, Agency, § 264. In Baltzen v. Nicolay, 53 N. Y. 467, it was said that “ the reason why the-.agent is liable in damages to the person with whom he contracts, when he exceeds his authority, is that the party dealing with him is deprived of any remedy upon the contract against the principal. The contract, though in form the-contract of the principal, is not his in fact; and it is but just that the loss occasioned by there being no valid contract with him should be borne by the agent who contracted for him without authority.” In Kroeger v. Pitcairn, supra, it was laid down that: “ The cases in which agents have been held liable personally have-sometimes been classified as follows, namely: (1) Where-the agent makes a false representation of his authority with; intent to deceive; (2) where, with knowledge of his want of. ■authority, but without intending any fraud, he assumes to-act as though he were fully authorized; (3) where he undertakes to act, Teona fide believing he has authority but in fact has none, as in the case of an agent acting under a forged. [339] power of attorney. As to oases fairly brought within either of the first two classes, there cannot be any doubt as to the personal liability of the self-constituted agent; and his liability may be enforced either by an action on the case for deceit or by electing to treat him as principal. "While the liability of agents in cases belonging to the third class has sometimes-been doubted, the weight of authority appears to be that they are also liable. This whole doctrine proceeds upon a plain principle of justice; for every person so acting for another, by a natural, if not a necessary, implication, holds himself out as having competent authority to do the act; and he thereby draws the other party into a reciprocal engagement. If he has no such authority and acts Iona fide, still he does a wrong to the other party; and if that wrong produces injury to the latter, owing to his confidence in the truth of an express or implied assertion of authority by the agent, it is perfectly just that he who mates such assertion should be personally responsible for the consequences, rather than that the injury should be borne by the other party who has been misled by it.” “ Much question has been raised as to the form of action in which the agent who acts without authority is held to be liable,— whether assumpsit can be maintained or only a special action on the case. Where an agent who knows that he has no authority makes express assertions that he possesses it, or so acts as to amount to an assertion of authority, and by so doing deceives and injures the other party, who has relied thereon, it cannot be doubted that an action on the case for the deceit is an appropriate remedy. At the same time, an action of assumpsit upon the express or implied warranty of authority might also be maintained, instead of the action on the case. Where, however, the agent, acting in good faith and supposing himself authorized, has made express or implied assertions of authority, an action of assumpsit seems the more appropriate remedy.” Mechera, [340] Agency, § 549. Later and better considered opinion seems to be that the liability, when the contract is made in the name of his principal, rests upon implied warranty of authority to make it, and the remedy is by an action for its breach. Collen v. Wright, 8 El. & Bl. 647; White v. Madison, 26 N. Y. 117; Dung v. Parker, 52 N. Y. 494. “ Later cases,” says Souddbe, J., in Patterson v. Lippincott, 47 N. J. Law, 457, “ hold that he may be sued either for a breach of warranty or for deceit, according to the facts in each case.” The defendant asserted his authority to make the sale, and induced the plaintiff to undertake to and procure a purchaser, as he did. The defendant is now in court, both as a party and as a witness, denying that he had any such authority, and is therefore chargeable with having deceived and injured the plaintiff, who relied on his assertions. An action on the case for such a deceit would be a proper remedy, and assumpsit might, as we have seen, be maintained upon the express warranty or assurance of his authority. For these reasons, the defendant wás liable, and the recovery against him is clearly right. It is therefore immaterial whether'the charge of the court was strictly correct. It is clear that it cannot be regarded as containing error prejudicial to the defendant’s rights; for, as we have said, upon the first finding of facts and the uncontradicted evidence of the defendant he was liable. It is not material, therefore, to notice the exceptions taken to the instructions; for, in the view we have taken of the case, they become immaterial, and cannot be said to be prejudicial to the rights of the defendant, and do not constitute reversible error. • 2. The court submitted the case under the statute for a general verdict, and for answers to certain specified questions submitted in connection therewith. R. S. sec. 2858. This was entirely proper, and we think that the practice pursued by the court in the present instance is free from [341] objection. Schatz v. Pfeil, 56 Wis. 429. The recovery upon the whole record is therefore clearly right, and we fail to perceive any sufficient reason for disturbing it. ; By the Gourt. — The judgment of the circuit court for Milwaukee county is affirmed.