Mundorff v. Wickersham

• Decision Date: 03 January 1870
• Citation: 63 Pa. 87
• Parties: Mundorff <I>versus</I> Wickersham.
• Court: Pennsylvania Supreme Court

63 Pa. 87

Mundorff versus Wickersham.

Supreme Court of Pennsylvania.

November 2, 1869.

January 3, 1870.

November 2d 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 210, to October and November Term 1869.

B. F. Lucas (with whom was A. G. Lucas), for the plaintiff in error, cited Bevan v. Insurance Co., 9 W. & S. 187.

There was no argument or paper book for defendant in error.

The opinion of the court was delivered, January 3d 1870, by SHARSWOOD, J.

If an agent obtains possession of the property of another, by making a stipulation or condition which he was not authorized to make, the principal must either return the property, or, if he receives it, it must be subject to the condition upon which it was parted with by the former owner. This proposition is founded upon a principle which pervades the law in all its branches: Qui sentit commodum, sentire debet et onus. The books are full of striking illustrations of it, and more especially in cases growing out of the relation of principal and agent. Thus, where a party adopts a contract which was entered into without his authority, he must adopt it altogether. He cannot ratify that part which is beneficial to himself and reject the remainder: he must take the benefit to be derived from the transaction cum onere: Broom's Legal Maxims 632; Hovil v. Pack, 7 East 164; Coleman v. Stark, 1 Oregon 115. In the familiar case of the sale of a horse by a servant, who, without authority, warrants the soundness of the animal; the master having received the price enhanced by the warranty, even though ignorant of it, is responsible: Nelyear v. Hawke, 5 Esp. 72; Alexander v. Gibson, 2 Campb. 555; Williamson v. Canaday, 3 Iredell 349. Where the agent of the insured, in effecting an insurance, makes a false and unauthorized representation, the policy is void. Where one of two innocent persons must suffer by the fraud or negligence of a third, whichever of the two has accredited him, ought to bear the loss: Fitzherbert v. Mather, 1 T. R. 12. The holder of a note is responsible for representations made by a broker employed to sell it, though contrary to his instructions: Lobdell v. Baker, 1 Metcalf 193. A principal who sues to enforce a contract, is bound by the representations made by his agent, in order to induce the opposite party to make it: Bennett v. Judson, 21 N. Y. 238; Elwell v. Chamberlain, 4 Bosw. 320; 31 N. Y. 611; so a debtor cannot have the benefit of a compromise and release, effected by his agent, without adopting all the representations made by the agent to the creditors, in negotiating it: Crans v. Hunter, 28 N. Y. 389. If an agent borrows money for...