#### Cooper, Appellant, vs. Huerth and others, Respondents.

*January 14*

March *17, 1914.*

*Principal and agent: Sales: Independent contract by agent: Special verdict: Form: Judgment contrary to finding as understood by all: Surprise.*

1. Agents through, whom an article (in this case an automobile) is sold, even though the sale is evidenced by a written agreement between their principal and' the buyer, may for the purpose of promoting their business as agents make an independent oral contract with the buyer on their own behalf and outside the scope of their agency, by way of warranty of the article Sold.

2. Where the controversy was as to whether defendants, through whom as agents plaintiff bought an automobile, made for themselves, independently of the written agreement between their principal and plaintiff, an oral agreement to take the car back if it did not prove satisfactory, and a question submitted in the special verdict was supposed by counsel on both sides and by the court as well to cover that issue, and the jury so understood it and found thereon, upon sufficient evidence, in plaintiff’s favor, • it was error for the court afterwards, upon the theory that the verdict did not cover that vital issue, to find thereon and render judgment in favor of defendants.

Appeal from a judgment of tbe circuit court for Sauk county: E. Rat SteveNS, Circuit Judge.

*Reversed.*

Action for breach of contract.

Plaintiff’s claim was tbat tbe individual defendants, in their bebalf and of tbe corporation defendant, tbe *Iiuerth-*
      *347
      *Schaefer Auto Company,*of 'which, they were the proprietors,, sold to him an automobile, talcing an old machine in part payment and his note for the deferred amount, $839, the note to' be left in the State Banlc of Sauk City, Wisconsin, to await a trial of the machine in respect to whether it would fill specified requirements so as to enable him to do his work therewith and if not the sale to he off and the note to he returned; that the machine wholly failed to come up to the guaranty made hy defendants and on the faith of which it was purchased, whereupon plaintiff tendered it back and demanded a return of his note, which was refused; that the note, instead of being held subject to a test of the machine as agreed, was put in circulation whereby it, for a valuable consideration in due course, came to the ownership of a party to whom plaintiff was compelled to pay it, to his damage in the amount so paid.

The claim of defendants was that they, as agents for the Monona Motor Oar Company and in no other capacity, sold the car to plaintiff; that the entire sale contract was embodied in a written agreement between their principal and plaintiff and contained no such guaranty as that claimed by him, and none other than as agents, and that the machine was in all respects according to the calls of such contract. The return of the machine and negotiation and payment of the note were admitted. Upon the trial the cause was opened to the jury on plaintiff’s part upon the-theory that the issue to be tried was whether defendants, for themselves, made an agreement in respect to the character of the machine as claimed in the complaint,' and on defendants’ part, upon the theory that they did not make any such contract nor any other except as agents, nor other than the one embodied in the writing.

Evidence was produced to support the two theories, — ■ court and jury understanding that the wrong which plaintiff complained of was a breach of a contract made by defendants in their own behalf to induce plaintiff to make the writ*348ten contract. There was evidence to the effect that, in the negotiations for the purchase of the machine, plaintiff was assured that if it did not prove satisfactory it would he taken hack and, as a test, plaintiff exacted and obtained assurance from defendants, personally, that it would go up a particular hill. It was established that the machine, in plaintiff’s hands, would not perform satisfactorily by going up such hill. There was some conflicting evidence as to whether the failure was owing to fault in the machine or in operating it.

To maintain the defense the written sales contract was produced in evidence and proof was made tending to show that it was the only agreement respecting the machine.

At the close .the conflicts were as to whether defendants made the contract claimed by plaintiff, agreeing that the test of capacity of the machine should be whether it would perform satisfactorily in respect to going up the particular hill, or whether the sole contract was the written agreement with the company for which defendants were agents. The court prepared this form of a special verdict upon the theory, at least as the parties supposed, that it covered all disputed matters in the case which were vital:

“(1) Did the defendants, or either of them, at any time during the negotiations for the sale of the car in question say that if the car was not satisfactory to the plaintiff there would be no sale ?

“(2) Did the defendants, or either of them, at any time during the negotiations for the sale of the car in question, guarantee that this car would go up Yankee Hill ?

“(3) If you answer questions Ho. 1 and Ho. *2,*or either of them, ‘Yes,’ then name the defendant, or defendants, that made such statement.

“(4) If you answer questions Ho. 1 and Ho. *2,*or either of them, ‘Yes,’ was the plaintiff induced to buy the automobile in question because of his belief in and reliance upon the truth of such statements ?

“(5) Was the trouble with the car here in question caused by the failure of the plaintiff to properly operate or care for the car?

*349“(6) Did tbe plaintiff, at tbe time be returned tbe car to tbe defendants, demand that they return tbe consideration wbicb be gave for tbe same ?”

Counsel for plaintiff did not ask submission of any other question, assuming that question 1 was framed to cover tbe disputed matter of whether defendants made tbe agreement be claimed. That was tbe basis of tbe cause of action plaintiff supposed himself to have, tbe one to wbicb all tbe evidence bad been directed, and tbe one stated to tbe jury to enable them to understand tbe evidence.

Plaintiff’s counsel requested an instruction which embodied tbe precise claim of plaintiff, but tbe same was not given. Tbe court instructed tbe jury, briefly, as to each question, without saying anything to indicate that tbe form for verdict did not cover tbe precise matter of dispute, to wit, whether defendants, for themselves, made tbe agreement claimed to induce plaintiff to take tbe machine under tbe written contract.

All questions of tbe special verdict were answered in plaintiff’s favor. Thereupon bis counsel moved for judgment and counsel for defendants moved tbe court for judgment on tbe verdict and, as an alternative, for a change of answers so as to shape tbe verdict in defendants’ favor and for judgment accordingly.

Both motions were denied and judgment was rendered in defendants’ favor upon tbe theory that tbe vital question of whether defendants contracted, for themselves, with plaintiff, as be claimed was not covered by tbe verdict, that there was no evidence to warrant a finding, on that matter in bis favor, and that tbe court, in any event, could make tbe finding as to such matter in defendants’ favor under tbe statute, sec. 2858m.

Counsel for plaintiff moved to set tbe judgment aside upon tbe ground of surprise; in that tbe only question in tbe case was whether defendants, for themselves, made tbe contract as claimed; that such question was tbe only one tried and re*350quired to be submitted to tbe jury, and that they were led to believe from the trend of proceedings up to the time of the announcement of the decision on the motions for judgment that the evidence produced raised a jury question in respect to the matter and that the court submitted question 1 to cover such matter. The motion was denied.

For the appellant there was a brief by *Benlley, Kelley & Hill,*and oral argument by *F. B. Bentley*and *J. H. Hill.*

For the respondents the cause was submitted on the brief of *J ones S 3 chubring.*

Maeshall, J.

The judgment must be reversed.

From the statement, which is a pretty accurate picture of the proceedings in this case, we cannot escape the conclusion that counsel supposed, and had good reason to suppose, that question 1 covered the vital matter in the case; that respondents’ counsel likewise supposed; and that the court submitted the question in such belief. It was a misuse of sec. 2858m, Stats., to submit to the jury the cause upon one theory and then dispose of it upon another, referring to sec. 2858m for assistance. That section was not intended as an instrumentality for any such use. True, as the trial court thought, it was essential to a recovery by plaintiff to satisfy the jury that defendants for themselves made the special contract as regards the capacity of the machine. The record shows counsel understood that in commencing the action and in every step taken on the trial down to the last opportunity for saying anything or doing anything in the case.

That they were taken by surprise, in the end, by the decision that the special verdict submitted by the court to cover the conflicts did not cover the most vital matter, and that there was no evidence to support plaintiff’s side, is most natural. Evidently, there was no one connected with the case who entertained such an idea. Counsel for defendants did not, else they would have moved for judgment notwithstanding the *351verdict. They moved for judgment on the verdict which, obviously, was baseless. Their motion to change the answers so as to warrant a judgment in defendants’ favor shows that they, as well as counsel for plaintiff, supposed that the court intended to and did submit plaintiff’s claims to the jury. That the jury so understood it, we cannot doubt. All the evidence was directed to the point of whether respondents made the independent contract.

True, there was no evidence that the actor on defendants’ part expressly stated that he made the agreement for themselves as principals; but the cause of action sued on involved that very matter as the vital point. The only fair view of the evidence is that it was directed to such point. The jury must have so understood it. We could not so reflect on counsel as to think that they traveled the whole course of this simple case without knowing what was required to malm a good cause of action for their clients and whether the evidence produced raised a fair jury question in respect to the matter and supposed, and had the best of reason for supposing, it was covered by the verdict.

The right of appellant seems too plain to warrant further discussing the matter. That the evidence raised a fair jury question as to whether defendants made the contract as claimed; that the jury understood, and had a right to understand, such issue was covered by the form for verdict submitted for their use and that they answered the questions for the purpose of finding that defendants for themselves made the contract as to the capability of the machine for plaintiff’s work, seems plain.

That it was perfectly competent for defendants, though acting as agents, to bind themselves by a contract entirely outside the scope of their agency, and for the purpose of promoting their business as agents, there can be no doubt. *Hull v.*Brown, 35 Wis. 652. The evidence tended to show that such a contract was made. The jury intended to find that *352sucb a contract was made. Tbe question which they supposed covered that vital matter, viewed in the light of the evidence and the whole trial of the case, meant what the jury supposed it to mean. It follows that the judgment should have been awarded to plaintiff on the verdict.

*By the Court.*— The judgment is reversed, and the cause remanded for judgment in favor of plaintiff.

XebwiN and TimliN, JJ., dissent.