Weinhagen v. Hayes

• Decision Date: 31 May 1921
• Citation: Weinhagen v. Hayes, 174 Wis. 233, 183 N.W. 162 (Wis. 1921)
• Parties: WEINHAGEN v. HAYES ET AL.
• Court: Wisconsin Supreme Court

174 Wis. 233

183 N.W. 162

WEINHAGEN

v.HAYES ET AL.

Supreme Court of Wisconsin.

May 31, 1921.

On rehearing.Original mandate approved.

For former opinion, see178 N. W. 780.

ROSENBERRY, J.

Chief Justice WINSLOW and Mr. Justice KERWIN took no part in the consideration of this case at the time it was submitted.The opinion of the court was filed July 3, 1920, three of the justices concurring in the decision and two dissenting.A motion for a rehearing was made.The motion was considered and a rehearing granted, and the cause was again fully argued before the court, all justices sitting.Before the matter was considered in conference, Mr. Justice KERWIN died.When the case was taken up the court was equally divided upon the questions involved.The case being an important one by reason of the amount and legal principles involved, further consideration was postponed until such time as the vacancy created by the death of Mr. Justice KERWIN should be filled.Upon the appointment of Mr. Justice DOERFLER, the entire matter was again reconsidered by the whole court.Upon such reconsideration the court is of the opinion that the conclusion reached and announced in the opinion filed should not be disturbed, largely for the reasons therein stated.The situation is such, however, that we deem it advisable to state briefly the grounds upon which our final conclusion rests.

Upon the rehearing, two principal questions were considered: First, whether the plaintiff was chargeable with the knowledge which his agent Schenck had as to the material facts in relation to the negotiations and the parties thereto; and, second, whether the twelfth finding made by the trial court was sustained by the evidence, and, if so, whether or not the subsequent conduct of the lessees amounted to a waiver of their right of rescission.

[1] In connection with the first proposition, some criticism is made of a statement contained in the opinion that--

“It taxes human credulity to believe that under such circumstances Schenck (the agent) did not know that McClure and Harvey represented the proposed lessee.”

We have again examined the testimony of Mr. Schenck upon this point, and while it does not appear that he knew the names of those who subsequently became the lessees, he must have known, or at least is chargeable as a matter of law with knowledge of the fact, that they represented an undisclosed principal, for at no time did they pretend that they were negotiating in their own behalf.They must have been negotiating in behalf of some principal, and it may be, as contended, that Mr. Schenck did not have knowledge of the fact that the present lessees were the principals, but he is chargeable, as a matter of law, with knowledge of the fact that they were representing a third party.It is further contended that Schenck's agency was of a very limited scope.In his reply to the cross-complaint the plaintiff alleged:

“That there was in the employ of this plaintiff a real estate agent by the name of Otto J. Schenck, to generally look after said real estate, collect the rents therefrom, taking care of the same for this plaintiff, and that this plaintiff let it be known to the said Otto J. Schenck that he would entertain a proposition to lease said real estate upon long-term lease, provided suitable and responsible parties could be found who would be willing to lease the same, and at such rental as this plaintiff would be willing to accept as a condition of entering into said lease.”

Plaintiff further alleged that--

“Accordingly, during the summer of 1911, certain persons, who were unknown to this plaintiff, approached the said Otto J. Schenck, who was at that time acting as the agent for this plaintiff, and informed the said Otto J. Schenck, as this plaintiff is informed and believes,that they, the said persons at that time...