Watson v. Union Iron & Steel Co.

15 Ill. App. 509, 1884 Ill. App. LEXIS 154

Opinion

Bailey, J.

The instruction given to the jury by the court, on his own motion, is, in our opinion, so far erroneous as to necessitate a reversal of the judgment.

The introductory clause of the instruction is obnoxious to grave criticism in that it tends to discredit the instructions given at the instance of the defendant. Eleven instructions were given for the defendant, stating in plain and terse language, and in most of them correctly, the rules of law applicable to the case upon the defendant’s theory as to the facts. Having read these instructions, the court proceeded to read an instruction prepared by himself, in which he commenced by saying that the plaintiff had asked no instructions, and that such of those asked by the defendant as he had thought to be correct, and had read to the jury, by no means covered the case which they had to decide, and that he thought he ought not to let the case go in that loose way. The jury may well have understood this language as meaning that the instructions given for the defendant, though correct, constituted a loose and wholly inadequate presentation of the rules of law applicable to the case. It is scarcely to be supposed that the jury would give to these instructions the consideration to which they were properly entitled after their substantial impeachment by another instruction emanating from the court.

But there are other features of the instruction which require a more careful and elaborate consideration. The leading paragraph of the instruction, briefly stated, yet preserving every essential feature, holds, that if the defendant represented to the plaintiff’s president that he bought the lands in question on the plaintiff’s account, if it chose to take them at what they cost him, and explained to him how he happened to take the title in his own name, and also represented that they cost him $5.10, when in fact they cost him much less; and if said president, relying upon such representations, directed the purchase of said lands at that price, and the plaintiff purchased said lands of the defendant, and paid him So.10 per acre therefor; and if at the time the defendant bought the lands, and at the time he sold them to the plaintiff, he was the plaintiff’s superintendent, and had been sent by the plaintiff to the vicinity of said lands to examine and negotiate for iron ore mines; and if his position in the service of the plaintiff in any material degree contributed to induce said president to rely upon his representations and buy said lands of him, then the plaintiff" may recover the difference between what the lands cost the defendant and what it paid him therefor.

It is not easy to determine the precise legal principle intended to be laid down in this instruction as the basis of a recovery. A part of the hypothesis submitted is that of a fraud perpetrated upon the plaintiff by means of false and fraudulent representations as to the price paid for the lands, yet it is manifest that no recovery can be had on the ground of fraud, at least in this form of action, until there has been a rescission of the contract.

Again it is urged that the plaintiff’s right to a recovery may be based upon another principle, namely, that as the evidence tends to show that the agreement on the part of the defendant was to sell the lands to the plaintiff at what they cost him, the real price agreed upon was-the cost, viz., $2 per acre, and all paid in excess of that may be recovered back as money paid by mistake. Whether that rule is, under the evidence, applicable to this case or not, it is very clear that it is not the rule sought to be invoked by the instruction. There is no attempt to submit the hypothesis of an agreement of the terms here supposed, but merely the hypothesis of a representation as to the cost of the lands, which, though preceding and forming an inducement to the contract, was no part of the contract itself. The agreement supposed in the instruction is an agreement to pay $5.10 per acre, and not $2 per acre.

But if we comprehend the instruction correctly, it seems to have been the design of the court to submit to the jury the question whether or not there existed between the plaintiff and defendant, at the time of the purchase of said lands by the defendant, such relations as would make the purchase inure to the benefit of the plaintiff. It is not disputed that the defendant at that time was the superintendent of the plaintiff’s works in Chicago, and that he had been sent by the plaintiff to investigate certain iron mines in the Lake Superior region, and if on investigation he deemed it advisable, to secure for the plaintiff certain interests therein. It also appeared from the evidence, with scarcely a shadow of controversy, that he was neither directed nor authorized by the plaintiff to purchase for it the lands in question, but that such purchase was outside of the actual purview of his agency. Had he been in fact the plaintiff’s agent to make the purchase, nothing is clearer or better settled than the rule which would have precluded him from making the purchase for his own benefit. Dennis v. McCagg, 32 Ill. 429; Reigard v. McNeil, 38 Id. 400; Davis v. Hamlin, 108 Id. 38. Even the purchase with his own money would not in that case have exempted him from the operation of the rule, as he would then have held the title merely as security for the money thus advanced.

But the rule goes further. It is not essential that the purchase should have actually been within the purview of the defendant’s authority as agent, if, at the time it was made, he assumed to act for the plaintiff and purchased for its benefit: In Dennis v. McCagg, supra, it was held, that the rule which governs in case of an actual agency applies where there is a voluntary assumption of agency; and that whether the act of agency be by actual employment by the parties or as a volunteer, can make no difference as to the responsibilities growing out of the relation. The same principle is recognized in Casey v. Casey, 14 Ill. 112, and Reigard v. McNeil, supra.

The case of Ely v. Hanford, 65 Ill. 267, to which we are referred, in no way conflicts with the rule above laid down, but on the contrary seems to expressly recognize it. There Ely entered into a contract with Metz, the owner of a certain lot in Hyde Park, for the purchase of said lot for the benefit of himself and another for $2,500. Some days afterward, Ely represented to Hanford that the lot was owned by another and that he would act as Hanford’s agent in purchasing it for him, and was employed by Hanford as his agent for that purpose. Ely thereupon obtained a conveyance of the lotto Han-ford for $4,050. It was not pretended that Ely either was or assumed to be Hanford’s agent at the time he entered into the contract with Metz. In a suit by Hanford to recover the difference between the price paid by him and what the lot cost Ely, it was held, that while Ely’s misrepresentation as to the ownership of the lot was such a fraud as would have enabled Hanford to rescind the contract in. toto, yet, as Ely was not his agent at the time of the purchase from Metz, he could not recover from. Ely the difference between what he had paid him and what the lot cost Ely. In the opinion the court say: “This action, as we conceive, is sustainable only upon the ground that the relation of principal and agent existed betweed Hanford and Ely, at the time the latter contracted with Metz for the lot. If before and at that time Ely had undertaken to act as the agent of Hanford to make the purchase for the latter, he would be liable in this action to refund to Hanford the difference between what Hanford paid him and what he paid Metz for the lot; for being Han-ford’s agent, this purchase from Metz would be Hanford’s purchase and Hanford would therefore be entitled to the full benefit of the contract.”

In the present ease, the question of fact to be determined by the jury, so far as this theory of the case is concerned, then, was whether the defendant, at the time he made the purchase of said lands, undertooh to act as the plaintiff’s agent, or in other words, assumed to make the purchase on the plaintiff’s account or for its benefit. As to this issue the evidence was conflicting. The defendant’s evidence tended to show that the purchase was made by him in his own name and for his own benefit and without reference to the plaintiff. On the oclier hand, the plaintiff gave evidence of certain admissions and representations made by the defendant, not at the time of the purchase, but afterward and during the negotiations which resulted in the sale of the lands to the plaintiff. These admissions and representations undoubtedly were competent evidence tending to prove the character in which the defendant made the purchase, but they were only evidence. Had they been made at the time of the purchase and as a part of the res gestee, they perhaps would have been conclusive, as the defendant would then, under the rule recognized in Heigard v. McNeil, have been estopped from denying 1ns agency. But being made afterward, the doctrine of estoppel does not apply.

The instruction required the jury to find, not the fact in issue, viz., that the defendant at the time he purchased the lands assumed to purchase them as the plaintiff’s agent, but only certain evidence tending to establish that fact, such evidence being only a portion of the evidence bearing upon that issue. This was clearly erroneous, as such evidential facts, even if found to exist, were not conclusive, and might or might not, in the light of all the evidence in the case, have convinced the jury of the existence of the fact which it was their duty to find.

For the error in giving the instruction, the judgment will be reversed and the cause remanded.

Judgment reversed.