
    McKinnon and others, Respondents, vs. Vollmar and another, Appellants.
    
      October 21
    
    
      November 5, 1889.
    
    
      Vendor and purchaser of land: Fraud: Rescission of sale: Recovery of consideration: Form of action: Agency: Delegation: False representations.
    
    1. Where the purchase of land was induced by fraud the purchaser-may rescind the sale and recover the consideration paid in an action for money had and received.
    2. Where the wrong land is pointed out to intending purchasers, whether intentionally or not, by an agent of the vendors, and the-purchase is made in the belief that the land purchased was shown, the consideration paid may be recovered, although the vendors did not know, when it was paid, that the wrong land had been shown.
    3. An agent employed to sell land may employ a subagent to point out the land to intending purchasers.
    
      4, If such subagent directs another person to show a particular tract of land to the purchaser as being the one in question, and he does so, the principal is bound by such act.
    5. "Where the purchase of land is induced by the vendor’s misrepresentation of the amount of timber thereon, the consideration paid may be recovered, although the vendors did not know, at the time, that such representation was false.
    APPEAL from the Circuit Court for Wood County.
    The action is for monej’- had and received by the defendants for the use of the plaintiffs McKinnon and Derfus, and of James Eedmond, now deceased, the intestate of the plaintiff Helen Redmond. The complaint is in the usual form of complaints in actions for money had and received. Elo particulars of the claim are stated therein, and no bill of particulars was given or .demanded. Except as to the allegations of the copartnership of the defendants, the death of James Eedmond, and the appointment of the plaintiff Helen Redmond as administratrix of his estate, the answer is a general denial. The cause was tried before a jury, and a special verdict returned.
    The transactions out of which the alleged cause of action arose, as the same were disclosed on the trial, are as follows: The defendants were the owners of 200 acres of land in Ash-land county, Wisconsin. They purchased the same in 1884 on the faith of the sworn statement of one Greeves and one Goodwin to the effect that they had personally examined the lands and estimated there were thereon 2,200,000 feet of pine, and that such estimates were true and correct to the best of their knowledge and belief. Soon after the purchase, the defendants authorized one Seibert, who resided at Marshfield, Wis. (where the defendants also resided), to sell the land for them, and agreed to pay him a commission for doing so. Seibert thereupon opened a correspondence on the subject with the plaintiff Derfus, who, together with the plaintiff McKinnon and James Eedmond, the intestate of the plaintiff Helen Redmond, resided at Chippewa Falls. Several letters passed between Seibert and Herfus on the subject of a sale of the property to the latter, after which Herfus visited Marshfield, and had interviews on the subject with Seibert and the defendants. The latter showed him the estimates of the amount of pine on their land made by Greeves and Goodwin, and, as he and Seibert testified, assured him that there were at least 2,000,000 feet of pine thereon. The defendants denied the latter statement. Her-fus went from Marshfield, in company with Greeves, to examine the land. The defendants furnished Herfus a correct description thereof. On the way there, Herfios and Greeves were joined by one Kirwin, whom Greeves hired to accompany them. They went into camp before reaching the land, and Greeves, having to exa-mine other lands, sent Kirwin to show Herfus defendants’ land. Greeves instructed Kirwin to show Herfus a particular parcel of land. Kirwin took Herfus upon the land Greeves directed him to show, and showed it to him as the .land of the defendants. The land thus showed was. not the land of the defendants, but was one mile distant therefrom, and was heavily timbered with pine. Neither Kirwin nor Herfus knew they were upon the wrong land.
    
      Herfus thereupon returned to'Marshfield, and contracted with defendants, on behalf of himself, the plaintiff MeKin-non, and James Kedmond, to purchase the land for $1,800, and paid the defendants $25 on account of the purchase. Soon thereafter, pursuant to an arrangement then made, one of the defendants went to Chippewa Falls, and delivered to the plaintiffs a conveyance, duly executed by the defendants, of the land so purchased. Such conveyance was made to the plaintiff McKinnon and James Kedmond, pursuant to an arrangement between the purchasérs. Thereupon the purchasers paid such defendant $1,115, being the balance of the purchase money. Soon afterwards the purchasers went upon the land to make preparations for lagging thereon, and then ascertained for the first time that there was little or no merchantable pine timber on it, and that Kirwin had shown Derfus the wrong land.
    Immediately after making this discovery, the grantees in the conveyance above mentioned, McKinnon and Eed-mond, and their respective wives, executed a conveyance of the land in due form to the defendants, tendered the same to them, and demanded that they refund the $1,800 thus paid for the land. Defendants refused to accept the deed or refund the money. On the trial, the plaintiffs brought the conveyance thus tendered into court, and deposited it with.the clerk for the defendants and subject to their order.
    The special verdict and proceedings thereon are as follows:
    
      “ (1) Did the defendants or George Seibert employ Greeves to show Derfus the lands? Answer. Yes. (2) If you answer the first question 4 Yes,’ state which of them so employed Greeves. A. Seibert. (3) If you answer the first question 4 Yes,’ then did Greeves employ Martin Kirwin to show Derfus the land? A. Yes. (4) Did Kirwin show Derftis the land actually sold by defendants to plaintiffs, or other lands? A. Other lands. (5) If you answer the fourth question that Kirwin showed Derfus lands not purchased,— the wrong lands,— then did Derfus, on the faith of information received at that time, purchase the lands? A. Yes. (6) If Kirwin showed Derfus the wrong lands, did he do so intentionally or by mistake, which? A. By mistake. (I) Did Greeves direct or induce Kirwin to show Derfus the wrong lands? A. Yes. (8) Did the plaintiffs purchase the lands in question of defendants,- believing that they were the same lands shown to Derfus by Kirwin? A. Yes. (9) Did plaintiffs pay defendants $1,775 for the lands, under a mistake on the part of the plaintiffs as to the location of the lands? A. Yes. (10) Did the defendants make any statement to Derfus, before the sale was made, as to how much pine timber there was on the lands, on which plaintiffs relied in making the purchase? A. Tes. (11).If you answer the last question, ‘Yes,’ then were such statements true or false? A. False. (12) Did defendants furnish Der-fus with a correct description of the lands before he went to Marshfield to examine them ? A. Tes. (13) How mucb pine timber was there at the time of the purchase on the lands described in deed from defendants to plaintiffs,— Ex. A? A. None. (14) Was the sale of the lands in question made under a mistake on the part of botb plaintiffs and defendants that Derfus had ,been shown the lands conveyed by the deed,— Ex. A? A. Mistake of both parties.”
    On receipt of said verdict, defendants’ counsel moved the court to set the same aside as being contrary to the evidence, which motion was'denied. Defendants’ counsel then moved the court for judgment for the defendants upon said verdict, which motion was denied, and an exception then .and there taken to the denial of each of said motions. Counsel for plaintiffs then moved the court for judgment upon said verdict, which motion was granted, and judgment rendered in favor of the plaintiffs and against the defendants accordingly, to which ruling defendants excepted.. Judgment was thereupon entered upon said verdict in favor of the plaintiffs, from which this appeal is taken by the defendants.
    For the appellants there was a brief by Gate, Jones & Sanborn, and oral argument by D. Lloyd Jones.
    
    For the respondents there was a brief by Jenkins <& Jenkins, and oral argument by John J. Jenkins.
    
   LyoN, J.

I. At the close of plaintiffs’ testimony, the defendants moved for a nonsuit. The motion was denied. This ruling is claimed to be erroneous for the alleged reason that the only remedy of the plaintiffs is by a suit in equity, and that, under the facts of the case, an action for money had and received, to recover the consideration paid for the land, cannot be maintained. The reason' thus assigned is unsound. It might be otherwise were this an action to rescind a conveyance of land, or to compel the execution of one. But this is not such an action. The only conveyance involved has already been rescinded, so far as the plaintiffs could rescind it, by the tender to the defendants of a sufficient conveyance of the land in question, and the deposit of such conveyance in court for the defendants. ^ The plaintiffs have done all they can do to place the parties in statu quo; and all the defendants have to do to accomplish that result is to accept such conveyance and refund the purchase money. There is nothing in the ■case which calls for the exercise of the peculiar and extraordinary jurisdiction of a court of equity. The controlling question in the case is whether the defendants ought to refund the consideration they received for the land. If they ought, such consideration can be recovered in an action for money had and received. Ela v. Am. M. U. Ex. Co. 29 Wis. 611. We conclude, therefore, that if the plaintiffs are entitled to recover such consideration they may recover the same in this form of action.

II. We now proceed to consider whether the findings of the jury are supported by the testimony. That there is sufficient testimony to support most of the findings is too ■clear for argument. A few of them only may be open to some doubt as to whether the testimony sustains them. These will be briefly noticed.

The sixth and seventh findings are to the effect that Greeves directed Kirwin to show Derfus the wrong land, and that he did so by mistake; that is ’to say, in the belief that he was showing defendants’ land. The finding is not that Greeves was mistaken in that particular, and it is quite evident from the testimony that he was not. In this view of the findings, they are supported by the testimony.

The thirteenth finding is that there is no pine timber on the lands sold by defendants to plaintiffs. This manifestly means no merchantable pine timber. There is considerable testimony that such is the fact.

The 'fourteenth finding is that the purchase and sale of the land was made under a mistake on the part of all the parties, in that they supposed Derfus had been shown the land conveyed by defendants to MoKinnon and Redmond. It seems to us that this is the unavoidable inference from all the testimony. It certainly was a mistake on the part of plaintiffs; and, if not so on the part of defendants, it was something worse. It is proper to say, however, in this connection, that the evidence casts no imputation of actual' fraud upon the defendants. It contains no suggestion that they knew, when they made the conveyance and received the consideration, that the wrong lands had been shown Derfus; and they are not to be censured because they refuse to refund the consideration until their liability to do so shall be determined judicially.

Our conclusion on this branch of the case is that all of the material findings are supported by the testimony.

III. The only remaining question to be determined is, Do the facts found by the jury, and the undisputed facts not so found, support the judgment?

We understand the law of this case to be that if the wrong land was pointed out to Derfus, whether intentionally or not, by an agent of the defendants, and the plaintiffs purchased believing that the right land had been shown Derfus, they may recover back the consideration paid therefor, although the defendants did not know, when the consideration was paid, that Derfus had been shown the wrong land, and although they made no representation to the purchasers of the amount of pine on the land; but if the person so showing the land was- not the agent of the defendants, all other circumstances being as above supposed, the defendants are not liable in this action. This is the doctrine of Law v. Grant, 37 Wis. 548. Hence it becomes important to ascertain whether the person who showed Derfus the wrong land was or was not the agent of the defendants in that behalf.

The jury did not find that Seibert was the agent of defendants to sell their land, but the- undisputed evidence establishes the fact that he was. The jury found that Seibert employed Greeves to show Derfus the land. Was Greeves the agent of the defendants ? The answer depends upon the question of Seibert’s authority to employ a sub-agent for that purpose.

The rule is that an agent in whom is reposed some trust or confidence in the performance of his agency, or who is required to exercise therein discretion or judgment, has no authority to intrust the performance of those duties to another, and thus bind the principal for the acts of the latter, without the consent of his principal. Numerous cases illustrating this rule will be found cited in 1 Am. & Eng. Ency. Law, 368, note 4. On the other hand, an agent may appoint a sub-agent 'to do acts in the course of the agency which do not call for the exercise of judgment or discretion, but which are purely executive or ministerial, and the principal is bound by the acts of such subagent, Renwich v. Bancroft, 56 Iowa, 527; Lyon v. Jerome, 26 Wend. 485; Ewell’s Evans on Agency, *43, and cases there cited.

In this case the showing of- the land to Derfus was a mere executive or ministerial act, requiring no exercise of judgment or discretion, and it was therefore entirely competent for Seibert to employ Greeves to perform it. It may be observed here that the defendants knew that Greeves had been selected by Seibert to show Derfus the land, and made no objection thereto. Indeed, it seemed to be a very proper appointment, for Greeves bad been upon the land, and estimated the timber thereon, and of course knew the location thereof, while it does not appear that Seibert ever saw the land. For the above reasons it must be held that Greeves was the agent of the defendants for the purpose of showing the lands to Derfus, and the defendants are responsible for the manner in which he performed the duties of such agency.

Greeves did not in person point put the land to Derfus, but he did so just as effectually as though he had gone upon the land in person and told Derfus that it was the defendants’ land for the purchase of which he was negotiating. He told Xirwin what particular tract of land he was to show Derfus, and Xirwin showed him such tract as he was directed to do. Thus Xirwin was the mere instrument of Greeves, and his act in thus pointing out the land was, in substance and legal effect, the act of Greeves, the agent of the defendants. Hence there is no question in the case as to whether Xirwin was or was not the agent of the defendants in what he did. Literally obeying the orders of Greeves, as he did, his acts were the acts of Greeves. An agent who, because of the trust and confidence reposed in him by his principal, cannot bind his principal by the acts of a subagent, may still employ another to do some specific act in the business of his agency, and, if such other do that act as directed, the principal is liable — not because the person performing the act is his agent, but because the act is the act of his agent, who directed it to be done.

It follows from the foregoing views that the defendants are liable for the act of their agent in thus showing Derfus the wrong land, although he did so through the instrumentality of Xirwin.

IY. Rut the judgment may be upheld on another ground. The jury found that the defendants made a statement to Berfus before the sale as to how much pine timber there was on the land, that the plaintiffs relied upon such statement in making the purchase, and that the same was false. The only statement on that subject mentioned in the testimony is that there were at least 2,000,000 feet of pine timber on the land; hence it must be inferred that this is the statement which the jury found was made by the defendants to Berfus. Under the circumstances of the case, the plaintiffs are excusable for not verifying the accuracy of such statement by actual inspection of the land; and under the above finding, without regard to the question of agency, the plaintiffs are entitled to recover. And it is quite immaterial that the defendants did not know at the time that such statement was false. Miner v. Medbury, 6 Wis. 295.

By the Court.- — The judgment of the circuit court is affirmed.  