Hepler v. Scheetz.

her husband, who she said had charge of

In a suit for commissions for the sale of the defendant's real estate, under an agreement with her husband acting as her agent, which she claims was unauthorized, a verdict for the plaintiff will not be disturbed, where the evidence shows that the defendant saw the plaintiff's card on the house and at least ratified what her husband did in putting the property in the plaintiff's hands to sell.

In such case it is proper to refuse to admit evidence that at the time when the plaintiff sold the property the defendant was negotiating with another purchaser to whom she afterwards sold the house at a higher price.

In such case it is proper to refuse to admit evidence of the mental incapacity of the defendant's husband to make a contract at the

time the one in this case was made. If she ratified his act his mental capacity was not material.

Where an agent is appointed for a particular purpose, his appointment carries with it all that is necessary to accomplish that purpose.

Rule for a new trial. C. P. of Lancaster County. January Term, 1913, No. 21.

Isaac R. Herr and Coyle & Keller, for defendant and rule.

band the plaintiff put his card on the house, containing the words, " For Sale. I. P. Hepler, 328 Woolworth Building, Lancaster, Pa. The defendant saw this card on the house. It remained there until the sale was made on September 18, 1912.

H. A. Gantert testified that Mr. Hepler left his business in his care when absent from the city in August. Having had an inquiry about it, he called on the defendant, and was told by her that her husband had charge of the property, and requested him to talk to him to put a price on it for which it would sell.

Louis Tomaso testified that he called upon Mr. Hepler, whose card was on the property, desiring to purchase it, and was referred to Mr. Gantert, as Mr. Hepler was out of the city. He then called on the defendant, met her and her husband, and in the presence of both wanted to buy it, offering $4,000, whereupon Mr. Scheetz wanted him to pay $4500, and when he would not agree to do so was told to see Mr. Hepler. He testified that Mrs. Scheetz was present when this conversation took place. The price at which the property was previously held was $10,000, then

contra.

The defendant denies that she told the plaintiff that Mr. Scheetz had charge

In this case the plaintiff claims commissions, for the sale of real estate, under a contract made with defendant's husband, who was acting as her agent. The verdict of the jury was in the plaintiff's favor, and we are now asked to grant a new trial.

The question at the trial was, whether the defendant had authorized her husband to arrange with the plaintiff to sell the property. The testimony on this subject was as follows: The plaintiff testified that in June 1912 he called at defendant's house, met her at the door, and asked about the sale of the house, which then had a card on " For Sale. Inquire Within". She referred him to

Mr. Scheetz was in the yard, when he inquired for Mr. Sheetz on the occasion of his first visit. She saw the card on the house that Mr. Hepler had the property for sale. She says that when her husband told her that Mr. Hepler was going to try to sell the property she said she hoped he would sell it. She knew that her husband told him to put the card on the house. She did not remember all that she said to Mr. Gantert, but testified that she remembered she told him the price was too high, and that he should get Mr. Scheetz to put the price down. She says she did not hear her husband tell Mr. Tomaso to see Mr. Hepler, but told Tomaso that he could not buy it for $4,000.

We submitted the question to the jury,

and we think they were fully justified, from this testimony, in finding that the defendant had authorized her husband to employ the plaintiff to sell the property. It is urged, however, that if defendant's husband was given authority to arrange with Mr. Hepler for the sa'e of the property, it was only to sell at a fixed price. This is not supported by the testimony. The price asked for at first was $10,000, then $8,000, then $6,000. The defendant told plaintiff's employee, Mr. Gantert, that he should see Mr. Scheetz and try to get him to fix a price at which it would sell. This showed that she never authorized him to sell at a fixed price, but for a price at which it would sell.

The defendant's husband made a contract with the plaintiff, after Tomaso of fered $4,000 for the property, that he should sell it, and if he could get $4200 for it, he should have $200 for his commission.

The testimony showed, and the jury found, that the defendant's husband was authorized to act as her agent in the employment of the plaintiff to sell the property. Where a person appoints an agent for a particular purpose his appointment carries with it all that is necessary to accomplish that object: Clark on Contracts, page 735. The authority to employ carried with it the authority to compensate for that employment, as that was necessary to accompany the object of the employment, so that the contract was within the scope of his authority. The fact that the defendant told Tomaso that she would not sell for $4,000 does not change this, unless it was communicated to the plaintiff, and there is no testimony to this effect. He knew that the defendant's husband had authority to employ him to sell, and was justified in assuming that what he did in this connection was with the defendant's authority.

It is contended that we erred in not admitting certain testimony offered by the defendant. The first was the testi- | mony offered to show that at the time plaintiff sold, the defendant was negotiating with another person to purchase it for an amount in excess of $4,000, and

that on September 20, two days afterwards, she actually did sell it to another for from $6,000 to $6,700. We did not at the trial, and we do not now think, this was relevant testimony. The question was, did the defendant authorize her husband to employ the plaintiff to sell, and did he make a contract to pay the plaintiff $200 if he sold for $4200. If he did have such authority and did make such a contract, and the jury so found, the fact that she subsequently sold for a price in excess of that realized by the plaintiff, or that she was negotiating with a person for the sale of it at an amount in excess of $4,000, would not relieve her from liability to pay the plaintiff for his services under the contract. Nor would the testimony have corroborated her in her testimony that she had not authorized her husband to employ the plaintiff. The contract of employment was made three months before the property was sold. Unless she terminated that employment, of which there is no testi-. mony she is bound by what was done under it, so far, at least, as compensating the plaintiff for his services.

It is also urged that we erred in refusing to admit testimony of the mental incapacity of the defendant's husband to make a contract at the time the one in this case was made. The defendant's offer, as shown on page 27, was to show by her own testimony and that of Dr. J. L. Mowery, “ that her husband's mem-` ory was such that he was not competent to do business and that she knew it at the time" corroborative of her testimony that she had not authorized her husband to act as her agent in the sale of the property. The second, as shown on page 38, where she offered by the same testimony to show, "for the purpose of showing that the alleged contract between Abram Scheetz and I. P. Hepler was invalid and voidable, that he was, at the time of entering into the alleged contract, of unsound mind and not competent to carry on his business."

We do not think the admission of the testimony embraced in the first offer would have been admissible as corroborative of her testimony. It is true she denied she had authorized Mr. Hepler to

deal with her husband, or that she said he had charge of the property, but she testified that she saw the "For Sale" card of Mt. Hepler on the house, and that when her husband told her the plaintiff was going to try to sell the property she said she hoped he would. Even though she did not admit that she had authorized her husband to arrange for the sale, she did admit that she had ratified his action as her agent in doing so, and the fact that his memory was such as to unfit him to carry on business would not in any way affect this admitted ratification of his act, done for her, as agent.

Nor do we think that the testimony was admissible for the purpose embraced in the second offer. His mental capacity could not be used to avoid the contract in question. If she knew his mind was not what it should have been, and appointed him her agent, or ratified his acts as such, she was bound by what he did. She could not have the benefit of what he did as her agent and escape liability. All through the transaction, according to the testimony on the part of the plaintiff, she knew what he was doing and approved of it, and according to her own testimony she ratified what he did in putting it in plaintiff's hands to sell. In 31 Cyc. 1212, it is said. “ Generally speaking the principal will not be heard to complain of the lack of mental capacity of one whom he has chosen to represent him. However, an agent lack ing contractual capacity, although he may bind his principal will not, of course, himself be bound by an agency contract more than by an other, and hence incurs none of the agent's contractual liabilities."

We think that no error was committed on this trial, and, therefore, discharge

the rule for a new trial.

Dassinger v. Danz.

Judgment-Scire facias - Transfer of property.

A defendant in a judgment is not entitled to be discharged or to have the case submitted to a jury on a scire facias, because he gave the judgment for purchase money for a property which he subsequently sold to a third party who agreed to assume payment of the judgment, there being no evidence that the pla.ntiff agreed to release the defendant.

Rule for a new trial. C. P. of Lancaster Co. June Term, 1913, No. 36. B. F. Davis, for defendant and rule. John E. Malone, contra.

January 17, 1914. Opinion by HASSLER, J.

Adam J. Danz, the defendant in the above-named judgment, in 1903 purchased a house and lot in this city, in part payment of which he gave the above judgment to his vendor, who transferred it to Agnes Dassinger, the present plaintiff. It is marked "Purchase money judgment." In 1906 the defendant sold the house and lot to J. W. Cohn, who agreed to assume the payment of the judgment and interest, the latter of which he paid for some time. It was not shown that the plaintiff agreed to release the defendant from the payment of the judgment.

not

These were the facts shown at th

trial of this sci. fa. to revive the judg ment, and we instructed the jury as this was not proof of payment or satisfaction of the judgment or a discharge of the defendant from payment of it, it was should be found for the plaintiff. This a good defense, and the verdict was done, and we are now asked to grant a new trial for the reason that the instructions were erroneous. We are not convinced that they were erroneous, and discharge the rule for a new trial.

Legal Miscellany.

The Case System Criticized.

Attention is called in the current number of The Green Bag to an interesting criticism of the case system of instruction by Prof. W. Harrison Moore, of the University of Melbourne, published in 13 Journal of Society of Comparative Legislation, N. S., 207.

It seems that Prof. Moore, while on a leave of absence from the University of Melbourne in 1911, spent about a month at the Harvard and Columbia Law Schools, with a view to forming some estimate of the value of this system of teaching law. After describing the system, he sums up its merits as follows:

"The student studies his law from the outset as he will have to study it for purposes of argument in court. He acquires familiarity with legal method, and with the process of legal development; he gains great facility in the use of his materials; he gains confidence, a critical habit of mind, and independence of thought; and his studies are carried on in the stimulating way of contest with his fellows and his instructor."

On the other hand, the system assumes a high degree of maturity in the student and is subject to the serious disadvantage that in a large class only a very small proportion of the members can get into the discussion, which necessarily tends to fall into the hands of the professor and the abler men. He also notes that the same set of students seem to lead the discussions in several, if not all their classes, and that the discussion must often leave a large number of students in a good deal of doubt as to what really is settled law. He himself frankly admits that when the subject was one with which he was not familiar, he left the room several times without a clear notion as to what was settled law in the matter. To meet this difficulty, he strongly recommends the use of a short expository address, either at the beginning or at the close of the discussion. His ultimate view of the subject is thus summed up:

"It seems to me that, in the familiar academic contest of Method in Teaching and Learning to Learn' v. Imparting Knowledge, the first is rather overemphasized in the case system, and I was very much disposed to agree with suggestions that the advantage which the case method admittedly has could be sufficiently secured by its exclusive adoption in one or two subjects-one, at least, should be in the first year-and that the rest of the course might be pursued with a more liberal use of the text-book and the expository lecture.

"There is another aspect of the case system which demands serious attention, though it belongs, perhaps, more to the scope than the methods of legal education. We know on good authority that debate makes a ready man, and that the legal method of detail makes men cut deep. But we know, also, that it has not a tendency in the same degree to make them take broad views. Now, it seems to me that a system of education. resting exclusively upon the study of cases tends to exaggerate the logical side of the law, to consider it too exclusively on its formal side, to over-emphasize the consistency and harmony of the law. These are dangers to which the lawyer is prone, and which, time and again, have manifested themselves in history. As professional thought is one of the principal factors in legal development, this stamps itself upon the law, with the result that the law may become less and less an instrument for accomplishing present social ends, and more an institution to the needs of which social ends themselves must be adapted. In other words, we get a point of view which may be described, with not more than the usual amount of polemical exaggeration, as one according to which law does not exist for society, but society for law.

"This state of things will speedily produce sterility in the natural development of law; it stifles the sense of public duty in the profession of the law, and excites jealousy and suspicion of law and lawyers on the part of the public. The failure of the law to adapt itself to the needs of the community probably stimulates an unhealthy activity in the legisla