69 N.W. 927 (Minn. 1897), 10,257, Wheeler v. Benton

Docket Nº:10,257--(245)
Citation:69 N.W. 927, 67 Minn. 293
Opinion Judge:CANTY, J.
Party Name:FRANCES S. WHEELER v. JOHN D. BENTON
Attorney:Wilson & Van Derlip, for appellant. M. P. Brewer, for respondent.
Case Date:January 22, 1897
Court:Supreme Court of Minnesota
 
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Page 927

69 N.W. 927 (Minn. 1897)

67 Minn. 293

FRANCES S. WHEELER

v.

JOHN D. BENTON

Nos. 10,257--(245)

Supreme Court of Minnesota

January 22, 1897

Appeal by defendant from an order of the district court for Hennepin county, Belden, J., denying a motion for a new trial, after trial by the court and order for judgment in favor of plaintiff for $ 6,130.14. Reversed.

The order appealed from is reversed and a new trial granted.

Wilson & Van Derlip, for appellant.

As respects third persons an agency may be created or its character determined in three ways: (1) By express authority; (2) by authority implied from the relations of the parties; and (3) by the apparent authority which one person permits another to possess. The distinction between implied authority and apparent authority exists, though the two are often confused. Johnson v. Milwaukee & W. I. Co., 46 Neb. 480, 64 N.W. 1100; Winchell v. Nat. E. Co., 64 Vt. 15, 23 A. 728; Mechem, Ag. § 4; 18 Cent. L. J. 165, 166; Bronson's Execr. v. Chappell, 12 Wall. 681; Columbia Mill Co. v. Nat. Bank, 52 Minn. 224, 53 N.W. 1061. The sole question here is, then, did Wheeler possess such apparent authority as to justify Darling and King in supposing he could contract concerning this note. See finding of court No. 15, quoted in opinion. Knowles is estopped by his acts. If he did not actually know of Wheeler's assumed authority, he was put upon his inquiry. Such inquiry would have compelled either ratification of Wheeler's action or the repudiation of any unauthorized act. 2 Pomeroy, Eq. Jur. §§ 607, 608; Stein v. Swensen, 46 Minn. 360, 49 N.W. 55; Fowlds v. Evans, 52 Minn. 551, 563, 54 N.W. 743. The fact that Wheeler, who was the only living person having cognizance of Knowles' knowledge or ignorance, was not called as a witness, although he sat through the trial beside his wife's counsel, is not consistent with strict integrity of purpose. Kalk v. Fielding, 50 Wis. 339, 7 N.W. 296; Germania S. V. & T. Co. v. Boynton, 19 C. C. A. 118, 71 F. 797.

M. P. Brewer, for respondent.

OPINION

[67 Minn. 294] CANTY, J.

Defendant is the maker of the promissory note in suit, which is dated April 22, 1887, due three years from date, for the sum of $ 4,200, and payable to the order of one Betts, who in January, 1888, indorsed and delivered it to one Henry L. Knowles, a resident of the state of New York. Knowles died in 1892, and the note was acquired by plaintiff, his daughter, as a part of her share [67 Minn. 295] of his estate. On the trial before the court without a jury, the court found for plaintiff...

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