Meyerhoff v. Daniels , 173 Pa. 555 ( 1896 )

Opinion by

Mr. Justice Green,

The defendant, being examined as a witness upon cross-examination, testified that Guggenheimer was her agent for the purchase of goods for her establishment, and Guggenheimer who was also examined testified to the same fact. The latter testified that he bought the goods in question for the defendant and that he had authority to buy either for cash or on credit, whichever he saw fit to do. The goods were therefore actually purchased for the defendant by her agent, they were delivered to her and nearly all of them were found in her possession at the time the writ of replevin was issued and served. The plaintiff testified that at the time of the purchase certain representations were made to him by Guggenheimer as to the financial responsibility of the defendant, and that he stated certain reasons why she could not pay immediate cash for the goods, but that the money would be paid the following week. If these representations were made as stated by the plaintiff, the subsequent events which occurred very quickly after the sale, tended strongly to prove that they were false. The goods were sold on May 29, 1894, and on June 16th following, the defendant made a voluntary assignment for the benefit of creditors. The question of the making of the representations and of their truth or falsity, was as a matter of course, exclusively for the jury. The witness denied making them but the plaintiff testified positively, and with emphasis, giving precise details, that they were made, and that it was only upon the faith of the representations that he opened the account and shipped the goods. That the defendant was responsible for the acts and declarations of her agent under whose contract of purchase she received the goods is too plain for argument, and is not at all disputed. Whether the agent had authority to make the representations in question or not, is quite immaterial. The test of liability is that the goods were received by the defendant under the contract made by the agent. In Wheeler & Wilson v. Aughey, 144 Pa. 398, we held that, “ If an agent obtains possession of the property of another by making a stipulation or condition wMch he was not authorized to make, the principal must either return the property, or if he receives it, he must be subject to the condition upon which it was parted with by the former owner.” In Jones v. National Building Association, 94 Pa. 215 we said, Paxson, J., “ The contention on the part of the association plaintiff is, that the secretary had no authority to make the'representations by which said Jones was induced to sign the note as surely; that it was therefore a fraud and not binding on said association; that is, the latter could repudiate the fraud and yet hold on to its fruits. This cannot be done. Common honesty and the law of the land alike forbid it. Whether the association was incorporated or unincorporated, whether the secretary was or was not authorized to make the representations to Jones, it is clear that the association cannot have the benefit of the security and at the same time repudiate the contract by means of which they obtained it. No principle of law is better settled than that a man cannot reap the fruits of his agent’s fraud: Musser v. Hyde, 2 W. & S. 314; Hunt v. Moore, 2 Barr 105; Mundorff v. Wickersham, 13 P. F. Smith, 87; Keough v. Leslie, 11 Norris, 424. The association took this security cum onere, and the maxim qui sentit commodum sen-tire debet et onus applies.”

In Sunbury Fire Ins. Co. v. Humble, 100 Pa. 495, we said, “ In this connection, it is proper to say that it matters little what were the powers of the agent who made the fraudulent representations by means of which the defendant was induced to take his policy, nor whether the agent himself believed them to be true. The company having accepted the policy, is affected with any fraud upon the part of the person obtaining it. In other words it cannot .repudiate the fraud and yet retain the benefits of the contract. It takes cum onere.’-’

In view of the foregoing authorities, and the undoubted state of the law upon this subject we think it was not competent for the learned court below to direct a verdict for the defendant. The whole case should have gone to the jury with instructions that if they believed that the goods in question were obtained by means of false representations made by Guggenheimer the verdict should be in favor of the plaintiff.

We think the other assignments of error are also sustained. The case was one of fraud in obtaining the goods and any facts which tended to support the plaintiff’s allegations in that regard should have been received and heard. We think all the matters offered to be proved in the first four assignments of error should have been admitted in evidence, as, if the testimony supported tbe offers it might have a material effect in determining tbequestion of fraud and the defendant’s participation therein.. Upon the first five assignments of error the judgment is reversed..

Judgment reversed and new venire awarded.