#### Domasek, Respondent, vs. Kluck, Appellant.

*January 30*—

February *18, 1902.*

*Agency: Evidence: Prejudicial error: Putative agent.*

1. In the absence of a request for any further caution to the jury, it is not error to admit in evidence the declarations of W., that he was defendant’s agent, where it was given incidentally, as a part of the very transaction of the sale on which the action was founded, and the court, in the presence of the jury, promptly ruled that the statements of W. could not he taken as proof of his agency.

2. Admission in evidence for plaintiff of a fact also proved by defendant’s evidence, is not prejudicial.

3. Plaintiff sought, under allegations of agency, to prove both agency in fact, and a holding out of W. as an agent. It was conceded that no change in the relations between W. and defendant had taken place between the transaction with plaintiff and a similar transaction subsequently had with K. *Held,*that it was not error to admit the testimony of K. as to his transaction and the recognition therein of W.’s agency.

Appeal from a judgment of tbe circuit court for Portage county: Chas. M. Webb, Circuit Judge.

*Affirmed.*

Tbe plaintiff, about April 15, 1899, sold bis potatoes to the amount of $329.45 to one Julius Werachowski upon the *337latter’s statement, as plaintiff claims, that the purchase was as agent for the defendant. That agency is denied. Plaintiff offered evidence of the course of business by Werachowski, with knowledge on the part of the defendant, both for the purpose of justifying an inference of agency in fact and of an apparent agency permitted by the defendant, and also offered evidence of subsequent affirmance of the purchase and promise to pay by the defendant in person. All these contentions were controverted. The jury found a general verdict in favor of the plaintiff, upon which judgment was rendered, wherefrom defendant brings this appeal.

Por the appellant the cause was submitted on the brief of *Brennan & Frost.*

Por the respondent there was a brief by Gate, *Lamoreux & Park,*and oral argument by *F. B. Lamoreux.*

Dodge, J.

Appellant assigns a series of specific errors, which may be considered in the order of their discussion in his brief.

1. Error is assigned upon the alleged admission of testimony as to statements of the assumed agent, Werachow-ski, that he was such agent, and the familiar rule is invoked that the fact of the agency cannot be proved by declarations of the alleged agent. Examination of the record, however, does not disclose admission of any such, except as it came in incidentally in the testimony of plaintiff’s agent, who made the sales, of the very transaction of selling. It is, of course, permissible to prove that transaction, its materiality being subject to subsequent proof of agency; and the court so ruled, declaring, in presence of the jury, that statements of Werachowski could not be taken as any proof of the fact of his agency. No request was made Tor any further caution to the jury on the subject. In thus ruling we think the court was entirely correct, and committed no error.

*338• 2. Error is assigned in admitting testimony as to who comprised a firm known as Lukasavitz & Kluck. Whether this was admissible or not, we deem it wholly immaterial and nonprejndicial. Its only significance was to connect the defendant with the business of that firm, to which he succeeded shortly before the plaintiff’s sale, continuing the business in exactly the same way, as some of the witnesses testified. Defendant himself gave positive testimony to the effect that he was a member of that firm; and, even if the evidence was improper when offered by the plaintiff, it was nonprejudicial, because the fact appeared at the instance of the defendant himself.

3. Error is assigned upon the admission of the testimony of one Knitter to the having of an entirely similar transaction with Werachowski, and the recognition thereof by the defendant as binding on him, which transaction was subsequent to that of the plaintiff. It is argued that this subsequent transaction could have no relevancy to1 the issue of an apparent agency upon which plaintiff relied. Conceding the correctness of that position, it must he borne in mind that evidence was offered under the allegation -of agency_to prove> — First, agency in fact; and, secondly, a holding out of Werachowski as an agent. While this transaction, occurring a few days after plaintiff’s, could have no effect in misleading plaintiff to believe in an agency which did not exist, it was some evidence of admission by the defendant that the agency in fact existed, it being conceded on all hands that no change in the relations between Werachowski and the defendant took place in the interval. No error, therefore, can be predicated upon, its admission for that purpose. If any caution to the jury to restrict it to that effect were proper, defendant should have made request therefor, which he did not.

4. The only remaining assignment of error is to the charge of the court. Thereby he seems to have submitted to the *339jury only two grounds of liability, namely, that of a bolding •out of Weracbowski as an agent, relied on by tbe plaintiff, and ratification. Defendant does not contend that there is any error in tbe instructions upon tbe former issue as abstract propositions of law, but that the issue was not raised by tbe evidence, and instruction to tbe jury thereon was therefore misleading, and an intimation to'them that they might find such bolding out when tbe evidence did not warrant it. Tbe instructions present-to tbe jury tbe three elements necessary to bind one upon tbe doctrine of putative or apparent agency, namely, acts by tbe agent or principal, justifying belief in tbe agency, knowledge thereof by tbe defendant, and reliance thereon by tbe plaintiff, consistently with ordinary care and prudence.- W'e find no variance between tbe instructions given and tbe law as most recently laid down in *McDermott v.*Jackson, 97 Wis. 64; *S. C.*102 Wis. 419. We cannot agree with tbe appellant’s contention that there was no evidence to justify tbe submission of this issue. It was in proof that Weracbowski bad for a long time been buying potatoes and putting them in tbe warehouse belonging to tbe defendant; that tbe potatoes so bought and stored bad customarily been treated as tbe defendant’s, and shipped out to customers in bis name;, that tbe method of doing business was tbe same as bad been pursued during tbe time that defendant was associated with Lukasavitz, when confessedly Weracbowski was an agent, with authority to buy. There was abundant evidence of defendant’s knowledge of all these things, and tbe plaintiff testified that be bad known bow- tbe business was done for a year or two prior to tbe alleged sale, and that be knew that Weracbowski was engaged in buying potatoes for the defendant, and that be sold them to Weracbowski for tbe defendant. Many other facts might be recited, but it suffices to say that tbe record discloses at least some evidence justifying an inference by *340the jury of each of the three elements of putative agency above mentioned.

We conclude that none of the errors are well assigned.

*By the Gourt.*— Judgment affirmed.