Metzger v. Huntington, Trustee.

We might say, besides, that voluminous as is the reccord, we think it contains no evidence sufficient to sustain the verdict of the jury finding the fact of agency. That, however, is not a question upon which we think it necessary that we should enter, as is true, also, of other questions ably discussed by counsel. We are satisfied that the replies are insufficient, and that they are not cured by the verdict; and this conclusion must result in a reversal of the judgment.

The judgment is reversed, with instructions to sustain the demurrers to the second and third paragraphs of the reply, and for further proceedings.

Filed June 22, 1894.

ON PETITION FOR A REHEARING.

HOWARD, J.-In their petition and briefs for a rehearing, counsel for appellee have displayed much earnestness in argument, even pushing their zeal to the utmost verge of a proper discussion of the case. It would seem that the briefs might well have been devoted exclusively to the discussion of questions presented in the record.

Because the court has been unable to reach the conclusion reached by counsel, it is intimated that we have not considered appellee's side of the case. The sum of this contention is that because the court does not see the record as counsel see it, therefore the court does not see it as it is. We are, however, of opinion that our own vision should guide us, and inasmuch as we are unable to use appellee's glasses, we must be content to make use. of our own in looking through the record.

To counsel, the record seems to show that appellee is entitled to recover from appellant a large sum of money. To the court, it is apparent from the same record that an outrage was attempted upon appellant; that, whether by

1

Metzger v. Huntington, Trustee.

fraudulent design or by an unfortunate chapter of accidents, an unconscionable obligation was sought to be thrust upon him without his knowledge or consent.

In appellee's additional brief, Barrett v. Lewis, 106 Ind. 120, and Otis v. Gregory, 111 Ind. 504, are cited to show that the substance, rather than the forms, of a transaction are to be regarded in adjudicating the rights of parties. This is a sound and equitable rule, and peculiarly applicable to the case before us.

Regarding, therefore, the substance of the pleadings in this action, which were considered in the original. opinion, and upon which the case was tried and the decision rendered, we find that the complaint presents a prima facie case in favor of the appellee. A deed is shown from Wilson to Metzger, duly recorded, and containing a clause in which the payment of a mortgage debt due appellee is assumed. Acts from which an acceptance by Metzger of said deed may be inferred are also alleged.

The answers admit this deed and its record, and that it contains the assumption clause, but deny that the clause was inserted with Metzger's consent or knowledge, or that its insertion was ever ratified by him. This certainly was in substance a plea in confession and avoid

ance.

The replies set up the facts in detail, showing all the transactions from the first contract of appellee with Wilson and Little until the bringing of the suit against Metzger upon the assumption clause. The facts so detailed do not show that Metzger ever authorized or knew of the insertion of the assumption clause, or that he ever ratified it. The demurrers to the replies should, therefore, have been sustained. Otherwise a personal debt may be imposed upon an individual without his knowledge

Metzger v. Huntington, Trustee.

or consent, a proposition abhorrent to the plainest principles of justice.

But, while counsel do not any longer seriously argue that the replies are good in themselves, yet it is said that the jury found that in the making of the deed from Wilson to Metzger, and in the accepting of that deed, with its assumption clause, Wilson was Metzger's agent; that, therefore, the replies, as thus cured by the verdict, show that Metzger, through Wilson, his agent, did have knowledge of the assumption clause, and did accept the deed containing it.

Agency is a conclusion of fact, to be established by direct proof or by the attendant circumstances. Columbus, etc., R. W. Co. v. Powell, Admr., 40 Ind. 37; Isbell v. Brinkman, 70 Ind. 118; Indiana, etc., R. W. Co. v. Anderson, 114 Ind. 282.

It is not claimed that there is in this case any direct proof that Metzger ever appointed Wilson his agent. The appointment, if made, can be made known to us only by inferences from facts shown. If, therefore, the particular facts and circumstances found are not consistent with the fact of agency, then the mere conclusion of the jury, that one was the agent of another, falls unsupported to the ground.

Undoubtedly, the jury were of opinion, and correctly so, as said in Story on Agency, section 2, that, in general, "whatever a man sui juris may do of himself, he may do by another; and, as a correlative of the maxim that what is done by another is to be deemed done by the party himself."

So here, if the jury concluded from the circumstances detailed in the record that Wilson was Metzger's agent, then they might further conclude that what Wilson did in the premises, was done by Metzger.

Hence the question, first of all, to decide is, whether,

Metzger v. Huntington, Trustee.

in fact, Wilson was Metzger's agent for the purpose of making the assumption clause in the deed. If he was such agent, then the conclusion of the jury was correct; if he was not, then the whole fabric, built up on the theory of such agency, tumbles to the ground.

The definition of an agent at the common law, as quoted in Story on Agency, section 3, is: "An attorney is he who is appointed to do anything in the place of another."

The appointment need not be in writing. It may be inferred from the words or acts of the principal. These words or acts must, however, be such as point clearly to the agent as such.

In Evans on Agency (Ewell's ed.), the definition given is: "An agent is a person duly authorized to act on behalf of another, or one whose unauthorized act has been duly ratified." This definition is adopted in 1 Am. and Eng. Encyc. of Law, 333.

It will be noticed that the agent must be duly appointed, or his act must be duly ratified. It is not enough that the jury find that Wilson was Metzger's agent. The other facts found must be such as to allow the inference that he was duly appointed, or, at least, that his acts were duly ratified. The jury can not be allowed to give us their unsupported, and even, as here, contradicted, conclusion, simply, that he was agent.

So, also, it is not enough to show that Metzger ratified and acted under the deed. It is necessary to show that, at the time of such ratification, he knew of the existence of the assumption clause in the deed, and that he ratified such assumption clause; unless, indeed, it should ap: pear that the ratification of the deed was made with the intent to take all liability without such knowledge. Otherwise, all material circumstances must be made known to the principal. The act of the agent can not

Metzger v. Huntington, Trustee.

be ratified without knowledge of what the act was. And in this case, the ratification and acceptance of the deed could be only a ratification of what the principal knew was in the deed. 1 Am. and Eng. Encyc. of Law, 432, and cases cited.

In Manning v. Gasharie, 27 Ind. 399, where an agent was authorized to buy goods for cash only, it appeared that he had bought certain goods on credit. It was held that the acceptance and use of the goods by the principal would not be a ratification of the act of the agent, unless the fact of the purchase having been made on credit was known to the principal. See, also, Davis v. Talbot, supra, cited in the original opinion.

In the case at bar, in answer to interrogatories, the jury found that in the contract of sale to Metzger of Little's interest in the land, Wilson was Metzger's agent. But, in two other answers to interrogatories, just preceding, the jury also found, with reference to the same transaction, that Wilson was Little's agent. This contradiction shows that the jury had but a vague and con fused idea of the meaning of the term agent. In numerous other answers, the jury, in finding the particular facts and circumstances of all the transactions, show clearly that Wilson could not be Metzger's agent.

Even if Wilson had authority to execute and deliver to Metzger a deed for the land, and also to accept that deed, all as Metzger's agent, an absurdity on the face of the statement, yet even such authority would not give to Wilson the right to insert in the deed a personal obligation on the part of Metzger to pay a lien upon the land. Only by a ratification of the transaction, with full knowledge of all the circumstances, including the contents of the deed, could the principal be bound by such unauthorized act of the agent.

We think it clearly appears from the record in this