Tbe following opinion was filed November 19, 1912:
Maeshall, J.
It must be conceded that proof of appellant having paid tbe certificates without respondent having indorsed them, unexplained, made a case in her favor. It may also be conceded that, upon tbe whole case as sent to tbe jury, there was reasonable ground for tbe finding that respondent did not sufficiently bold out her husband as having authority to handle her business, to justify appellant in making the payment. However, there are many circumstances pointing in appellant’s favor on that subject. The case, in that regard, was so strong that had the evidence of Somers as to authority having been given him, been allowed, pretty certainly, it would, with the jury, have turned the scales in appellant’s favor. Most grievous error was committed in excluding that evidence. The rule which the trial judge supposed governed the situation, — the one that agency and agency authority cannot be established by proof of the declarations of the agent, — had no application to the case. It refers to declarations made out of court and offered as evidence by the testimony of the person to whom made, — not of the agent himself, as in this case. Such is always proper.
That the trial judge went widely and prejudicially astray in ruling out Somers’s evidence, is too' clear to require more than a mere statement of the matter. His evidence would probably have proved, 'or strongly tended to prove, that he either had authority to use the certificates as he did or that his doing so was subsequently consented to by respondent. The error in excluding the evidence was intensified by the court’s instructions to tíre jury. Remarks in their presence, [216]*216misconceiving tbe scope of tbe rule excluding proof of declarations of an -agent on tbe subject of bis agency, were made as prejudicial as practicable by tbe supplementary remarks on tbe subject in tbe charge. Tbe judge seems to bave tbougbt that sucb supplementary remarks were necessary to remove any vestige of Somers’s evidence as to bis agency, wbicb, perchance, bad not been stricken out, and all impressions wbicb sucb supposed erroneous evidence might bave made upon tbe minds of tbe jury.
According to tbe idea wbicb governed tbe trial, an agent-is incompetent to testify to bis agency or scope of bis authority, while tbe rule tbe court bad in mind, only goes to evidence of persons other than tbe agent, as to tbe latter’s declarations. It is not considered necessary to discuss tbe matter at length -and illustrate by authorities. It is too elementary. While it is often said in.the books, tbe declarations of an agent are, in general, no evidence of tbe agency, Davis v. Henderson, 20 Wis. 520; McCune v. Badger, 126 Wis. 186, 191, 105 N. W. 667; speaking always of declarations made to third persons who are called to prove tbe same, it is quite as often said: “Tbe authority of an agent, when not in writing or required to be, may be proved by tbe agent himself,” and sucb principle “governs in tbe proof of all agencies” including “where tbe wife acts as agent of tbe husband, or tbe husband -as agent of tbe wife.” O’Conner v. Hartford F. Ins. Co. 31 Wis. 160; Roberts v. Northwestern Nat. Ins. Co. 90 Wis. 210, 62 N. W. 1048; Smith v. State, 149 Wis. 63, 134 N. W, 1123.
For tbe manifest prejudicial error committed, as indicated, tbe judgment must be reversed; but it seems that still' more vital error was committed on tbe trial. So strong a case of estoppel and waiver was made in appellant’s favor, as seems to present -an insurmountable obstacle to any other disposition of tbe appeal than, to not only reverse tbe judgment;, >but to remand tbe cause for dismissal with costs.
[217]*217According to tbe undisputed evidence, respondent and ber husband, at the time she was first notified of her certificate money having all been drawn, lived so extravagantly that it could not well have failed to suggest to her probability of her money having been used up, if she did not actually know it. The circumstances point that way so forcibly as to be unexplainable on any reasonable hypothesis to the contrary. She was a woman of considerable experience. She had been married before she became the wife of Mr. Somers. She knew how to do business with a bank. She was accustomed to have a check account and to have certificates of deposit. She evidently knew such certificates, and not an open account, commonly drew interest and that it was important to her to draw the accrued, interest at regular periods.
A few days after the certificates in question had run a year, — the time requisite, presumably, to entitle her to the highest rate of interest, — she called up the bank by telephone about the matter. The reply indicated that the whole sum of $5,850 she possessed only a little more than a year before and placed in the hands of Somers had heen exhausted. She knew that could not possibly be without Mr. Somers having signed her name to the certificates, yet there is nothing to indicate that she was particularly surprised. Though assured from the bank, in the most positive language, that her money was gone, according to her story she was so satisfied with a mere remark by Mr. Somers that the bank official must have misunderstood her and that he would look up the matter the next day, that she never thought of the subject again for over a year, — even so as to inquire of Mr. Somers whether he had done as he promised.
How can the conduct indicated be reconciled with the idea that respondent did not, during the long period, know her money was gone ? She must have known of it. The circumstances pointing that way are so strong as to render her claim to the contrary unbelievable. Her conduct, from the first, [218]*218in leaving all ber -business with the bank to be transacted by Somers, gave him such dignity as her agent that, when she was Informed he had used up all her money, it was her duty to, at least, make seasonable efforts to acquaint appellant with his want of authority, if such want existed. How can such conduct be reasonably reconciled with the idea that she did not know, or have such reason to know the fact, as to be chargeable with knowledge thereof ? The most natural thing for one, in the circumstances she testified to herself, would be to follow up the matter by visiting the bank and make inquiry, or, at least, make inquiry of the husband as to whether he had investigated as she testified he promised to do. Yet, as it seems, she paid no attention to the matter for over a year, and until she had made up her mind to leave Somers. In that, it seems, there is such proof of prior authority, or subsequent acquiescence in the use of her certificates, that the conclusion is irresistible that there was one or the other, and that appellant had a right to rely on the appearance as to what the truth really was.
At this point the instruction to the jury that the delay did not work a waiver or estoppel in the absence of proof of actual damage to appellant by the facts is important. It was not good law and could not have worked otherwise than prejudicially. Such long delay, thus preventing appellant from having the benefit of opportunity to pursue Somers, if he had wrongfully obtained the money from the bank, was presumably prejudicial to it. The burden was not upon appellant, as the court suggested, to affirmatively establish actual damages by the delay. At least, the burden was rather upon respondent to establish the contrary. Moreover, if there was actual acquiescence, as the evidence seems to conclusively circumstantially establish, it was binding on her.
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Tbe following opinion was filed November 19, 1912:
Maeshall, J.
It must be conceded that proof of appellant having paid tbe certificates without respondent having indorsed them, unexplained, made a case in her favor. It may also be conceded that, upon tbe whole case as sent to tbe jury, there was reasonable ground for tbe finding that respondent did not sufficiently bold out her husband as having authority to handle her business, to justify appellant in making the payment. However, there are many circumstances pointing in appellant’s favor on that subject. The case, in that regard, was so strong that had the evidence of Somers as to authority having been given him, been allowed, pretty certainly, it would, with the jury, have turned the scales in appellant’s favor. Most grievous error was committed in excluding that evidence. The rule which the trial judge supposed governed the situation, — the one that agency and agency authority cannot be established by proof of the declarations of the agent, — had no application to the case. It refers to declarations made out of court and offered as evidence by the testimony of the person to whom made, — not of the agent himself, as in this case. Such is always proper.
That the trial judge went widely and prejudicially astray in ruling out Somers’s evidence, is too' clear to require more than a mere statement of the matter. His evidence would probably have proved, 'or strongly tended to prove, that he either had authority to use the certificates as he did or that his doing so was subsequently consented to by respondent. The error in excluding the evidence was intensified by the court’s instructions to tíre jury. Remarks in their presence, [216]*216misconceiving tbe scope of tbe rule excluding proof of declarations of an -agent on tbe subject of bis agency, were made as prejudicial as practicable by tbe supplementary remarks on tbe subject in tbe charge. Tbe judge seems to bave tbougbt that sucb supplementary remarks were necessary to remove any vestige of Somers’s evidence as to bis agency, wbicb, perchance, bad not been stricken out, and all impressions wbicb sucb supposed erroneous evidence might bave made upon tbe minds of tbe jury.
According to tbe idea wbicb governed tbe trial, an agent-is incompetent to testify to bis agency or scope of bis authority, while tbe rule tbe court bad in mind, only goes to evidence of persons other than tbe agent, as to tbe latter’s declarations. It is not considered necessary to discuss tbe matter at length -and illustrate by authorities. It is too elementary. While it is often said in.the books, tbe declarations of an agent are, in general, no evidence of tbe agency, Davis v. Henderson, 20 Wis. 520; McCune v. Badger, 126 Wis. 186, 191, 105 N. W. 667; speaking always of declarations made to third persons who are called to prove tbe same, it is quite as often said: “Tbe authority of an agent, when not in writing or required to be, may be proved by tbe agent himself,” and sucb principle “governs in tbe proof of all agencies” including “where tbe wife acts as agent of tbe husband, or tbe husband -as agent of tbe wife.” O’Conner v. Hartford F. Ins. Co. 31 Wis. 160; Roberts v. Northwestern Nat. Ins. Co. 90 Wis. 210, 62 N. W. 1048; Smith v. State, 149 Wis. 63, 134 N. W, 1123.
For tbe manifest prejudicial error committed, as indicated, tbe judgment must be reversed; but it seems that still' more vital error was committed on tbe trial. So strong a case of estoppel and waiver was made in appellant’s favor, as seems to present -an insurmountable obstacle to any other disposition of tbe appeal than, to not only reverse tbe judgment;, >but to remand tbe cause for dismissal with costs.
[217]*217According to tbe undisputed evidence, respondent and ber husband, at the time she was first notified of her certificate money having all been drawn, lived so extravagantly that it could not well have failed to suggest to her probability of her money having been used up, if she did not actually know it. The circumstances point that way so forcibly as to be unexplainable on any reasonable hypothesis to the contrary. She was a woman of considerable experience. She had been married before she became the wife of Mr. Somers. She knew how to do business with a bank. She was accustomed to have a check account and to have certificates of deposit. She evidently knew such certificates, and not an open account, commonly drew interest and that it was important to her to draw the accrued, interest at regular periods.
A few days after the certificates in question had run a year, — the time requisite, presumably, to entitle her to the highest rate of interest, — she called up the bank by telephone about the matter. The reply indicated that the whole sum of $5,850 she possessed only a little more than a year before and placed in the hands of Somers had heen exhausted. She knew that could not possibly be without Mr. Somers having signed her name to the certificates, yet there is nothing to indicate that she was particularly surprised. Though assured from the bank, in the most positive language, that her money was gone, according to her story she was so satisfied with a mere remark by Mr. Somers that the bank official must have misunderstood her and that he would look up the matter the next day, that she never thought of the subject again for over a year, — even so as to inquire of Mr. Somers whether he had done as he promised.
How can the conduct indicated be reconciled with the idea that respondent did not, during the long period, know her money was gone ? She must have known of it. The circumstances pointing that way are so strong as to render her claim to the contrary unbelievable. Her conduct, from the first, [218]*218in leaving all ber -business with the bank to be transacted by Somers, gave him such dignity as her agent that, when she was Informed he had used up all her money, it was her duty to, at least, make seasonable efforts to acquaint appellant with his want of authority, if such want existed. How can such conduct be reasonably reconciled with the idea that she did not know, or have such reason to know the fact, as to be chargeable with knowledge thereof ? The most natural thing for one, in the circumstances she testified to herself, would be to follow up the matter by visiting the bank and make inquiry, or, at least, make inquiry of the husband as to whether he had investigated as she testified he promised to do. Yet, as it seems, she paid no attention to the matter for over a year, and until she had made up her mind to leave Somers. In that, it seems, there is such proof of prior authority, or subsequent acquiescence in the use of her certificates, that the conclusion is irresistible that there was one or the other, and that appellant had a right to rely on the appearance as to what the truth really was.
At this point the instruction to the jury that the delay did not work a waiver or estoppel in the absence of proof of actual damage to appellant by the facts is important. It was not good law and could not have worked otherwise than prejudicially. Such long delay, thus preventing appellant from having the benefit of opportunity to pursue Somers, if he had wrongfully obtained the money from the bank, was presumably prejudicial to it. The burden was not upon appellant, as the court suggested, to affirmatively establish actual damages by the delay. At least, the burden was rather upon respondent to establish the contrary. Moreover, if there was actual acquiescence, as the evidence seems to conclusively circumstantially establish, it was binding on her. Having once acquiesced, she waived her right against the bank, regardless of whether there was any element of estop-pel, strictly so called, or not.
[219]*219A change of position by one, in reliance npon the conduct of another, so that a reversal of such conduct would work prejudice to the former, is essential to estoppel in pais; but, not to waiver, and one is just as effective as a defense as the other. She knew her rights, or should have known them. According to her testimony, she was fully informed of the fact that, if her husband had drawn her money without authority, she could insist upon its being paid to her just the same. She did not so insist till more than two years. She did not even raise the question for some fifteen months, and until, as before indicated, serious trouble had occurred between her and Somers.
The doctrine of waiver as applied to the facts in this case, seems to have been entirely overlooked by the trial court in deciding the motion made in appellant’s behalf for a directed .verdict. All the essentials of waiver were present without reasonable controversy. There was knowledge, actual and constructive, of the facts. Either was sufficient. The underlying facts, upon which to predicate a waiver, as in this case, and the waiver, itself, may be implied from circumstances as well as be established otherwise. Where implied, necessarily, from the circumstances, the mere claim of absence of intent to waive does not overcome such situation. This court has spoken on the subject, repeatedly. Pabst B. Co. v. Milwaukee, 126 Wis. 110, 105 N. W. 563; Smith v. Burns B. & Mfg. Co. 132 Wis. 177, 111 N. W. 1123; Voss v. Northwestern Nat. L. Ins. Co. 137 Wis. 492, 118 N. W. 212; Castello v. Citizens State Bank, 140 Wis. 275, 280, 122 N. W. 769. In Pabst B. Co. v. Milwaukee, supra, the principle of waiver was stated thus:
“The intent to waive may appear as a legal result of conduct. The actuating motive, or the intention to abandon a right, is generally a matter of inference to be deduced with more or less certainty from the external and visible acts of the party, and all the accompanying circumstances of the [220]*220transaction, regardless of whether there was an actual or expressed intent to waive, or even if there was an actual but. undisclosed intention to the contrary.”
“It is suggested that there can be no waiver without intent to waive based on knowledge of the facts. True, but one is presumed to know that which in contemplation of law he ought to know, and one is presumed to waive that which is necessarily implied from his conduct. Constructive as well as actual knowledge of the facts, and implied as well as express intent, satisfies the prime essential of a conclusive waiver.”
As indicated in the cases cited, there is much tendency to-' confuse the doctrine of estoppel with that of waiver which does not require any element of estoppel at all, — only a voluntary choice to insist or not to insist upon a right, known,, or conclusively presumed to he known. Unreasonable delay raises a conclusive presumption of acquiescence or choice. Speaking on the same subject in Smith v. Burns B. & Mfg. Co. 132 Wis. 177, 111 N. W. 1123, the court said:
“Waiver is -also applied to deprive one of a right or immunity when, having a right to assume either of two inconsistent positions, his acts unambiguously indicate an intention to adopt and avail himself of one. .In such case the law holds him to have effectually waived his right to claim the other, whether or not he consciously intended such waiver.”
In the light of the foregoing we cannot escape the conclusion from the circumstances which are substantially without, dispute, that respondent waited so long after being chargeable with knowledge of the misuse of her money, if there were such misuse, before asserting any right against appellant, that, as matter of law, she waived such right. She voluntarily chose to abandon all claim for her money or to seek redress against her husband. Having once so acquiesced, either actually or constructively, the surrendered right was-beyond her power to resume; and that whether there were, technically, the essentials of estoppel in pais or not.
[221]*221If there were any doubt as to the correctness of the fore.going, looking only to the conduct of respondent from the time sbe was informed by appellant in October, 1906, that her money had been withdrawn from the bank till she made inquiry fifteen months later, that doubt sinks out of sight in face of her conduct at the later date and from the time she made the claim over a year later. She was still living with Somers when she was definitely informed by him, in the early part of 190'8, that he had withdrawn her money, followed by her two interviews with appellant’s officers in respect to the matter. When called to face the situation where she had to choose whether to insist upon the bank paying the certificates a second time, leaving Somers liable to. an action for forgery, she informed appellant that she would reflect over the matter before taking the final step. In such circumstances she was bound to use some reasonable diligence in respect thereto. Certainly, the bank had a right to know from her, pretty .soon, what conclusion she had arrived at. In case of her failure, for a period beyond a reasonable time', to speak the final word, the bank had a right to conclusively presume that she had chosen to acquiesce in Somers’s conduct and waive her right against it. Certainly the long delay of over a year and till she had left Somers for good and resolved upon obtaining a divorce from him, indicated to the bank, as a matter of law, what conclusion she had reached.
The fact that during this second long period of silence respondent lived with Somers, shows, too, conclusively, that she had elected to abide by the situation he had created, to leave her any standing to then claim she intended, all the time, to hold appellant liable to her. The inference that she had abandoned such intent, if she had it up to the time of her visit to the bank, as before stated, seems to appear most unambiguously, and also that the final separation from Somers and consciousness that their marital relations were practically ended, moved her to change her mind. That she [222]*222could not efficiently do. The trial court seems to have thought she could, unless there was an element of estoppel involving actual damage to the bank by her delay, which is all wrong. The unambiguous purpose to waive her right against the bank, if she had any, as suggested by the authorities,, ended the matter so far as appellant was concerned. The case in its favor seems, on the law and the facts, to be too clear to warrant pursuing the matter further or making any other disposition than to reverse the judgment appealed from, and remand the cause with directions to dismiss with costs.
By the GouH. — So ordered.
Siebecker, T., dissents.
A motion for a rehearing was denied, with $25 costs, on February 18, 1913.