Grignon v. Schmitz

18 Wis. 620

• Court: Wisconsin Supreme Court
• Decided: June 15, 1864
• Status: Published

Opinion

By the Court,

Cole, J.

We think the authority produced for commencing this suit was ample, and sufficient to meet the requirements of our statute. It was in writing, signed by the agent of the plaintiffs, requesting the attorneys to com-menee the action. And the agent, swore that when he made and delivered this written request, he had authority from the plaintiffs to make and deliver the same in their names and for the purpose for which it was given. Our statute says that no action for the recovery of specific real property or the possession thereof shall be commenced by an attorney unless he has written authority from each one of the plaintiffs for commencing the same; but declares that any written request of such plaintiff or his agent, to commence said action, or written recognition of the authority to commence the same, duly proved by the affidavit of such attorney, or other competent witness, shall be sufficient presumptive evidence of such authority. Sec. 6, chap. 141, R. S. The objection is, that it does not appear that the authority of the agent was in writing. The statute does not require that it should be. It provides that any written request of the plaintiff or his agent to commence the action shall be deemed sufficient presumptive evidence of such authority. We fully agree with the view taken of this provision of law by the counsel for the appellants. The authority of the agent to make the written request to bring the suit need not be in writing. It may be by parol. A contract for the sale of real estate must be in writing, to bind the parties; and yet it is a very familiar rule that an agent may be authorized by parol to make such a contract on behalf of his principal. There are certainly quite as strong reasons for saying that the authority of an agent to execute a contract for the sale of real estate should be evidenced by writing only, as that the authority should be in writing in this case. But it is sufficient to say that our statute does not require that the authority of the agent should be evidenced by writing; and whatever might be our views of the policy of such a provision, we cannot incorporate it into the section.

The order dismissing the action is therefore reversed, and the cause remanded for further proceedings.