Shirland v. Monitor Iron Works Co.

41 Wis. 162

• Court: Wisconsin Supreme Court
• Decided: August 15, 1876
• Status: Published

Opinion

Cole, J.

Quite a number of exceptions were taken to the rulings of the court below, and are relied on here; but we have not time to consider them, and shall not attempt to do so. The judgment must be reversed on account of the error in allowing the plaintiff, against the defendant’s objection, to give in evidence the statement of Miller in respect to making the contract for the purchase of the machinery in question with the defendant. These declarations were clearly inadmissible, and, under the circumstances, could hardly fail to prejudice the defense.

The main issue in the case was, whether the plaintiff ever made a contract for the sale of the machinery to the defendant. He claimed that he did, through Pettibone, who acted as agent for the company in making the purchase. The defendant claimed that it never purchased the machinery; that it never authorized Pettibone to purchase it on its behalf; and that whatever was done by its officers or by Pettibone in negotiating a sale with Miller, was done to aid the plaintiff in making a sale. Such being the issue, and the testimony as to whether a contract of sale was actually made with the defendant being conflicting, it is manifest that the declarations of Miller that he had made the contract with the defendant as the owner of the property, were calculated to influence the minds of the jurors. It needs no argument to show that, by all well settled rules of evidence, the declarations of Miller upon the subject were inadmissible.

The learned county court gave a number of instructions which were excepted to, and refused to give requests asked on the part of the defendant. Without noticing in detail these various instructions given and refused, we think the following one should have been given. The court was asked to charge that if Pettibone was the agent of the plaintiff to sell the machinery, he could not at the same time be the agent of the defendant to buy it; and that if the jury found such to bé the fact, there could be no recovery. It seems to us plain that Pettibone could not act as agent of the plaintiff in selling the property, and at the same time act as agent for the defendant in buying it. The testimony offered on the part of the plaintiff tended to prove that he attempted to perform these utterly inconsistent duties. It is difficult to understand how a man can make a valid contract with himself (see Meyer v. Hanchett, 39 Wis., 419), and, without the authority or consent of the parties interested, act as the agent of both vendor .and purchaser in the same transaction.

But for the error in admitting the declarations of Miller, there must be a new trial.

By the Oowrt. — The judgment of the county court is reversed, and a new trial ordered.