Tallman v. Fitch , 49 Wis. 197 ( 1880 )

OetoN, J.

The only question raised upon the record for the consideration of this court,.not of fact, is the admissibility of the evidence relating to the instructions of the appellant to the clerk Carrier, and Carrier’s authority as the agent of the appellant, in respect to changing the terms of the lease. This evidence was inadmissible, on the ground of its immateriality.' The respondent did not claim, and there was no testimony to show, that any contract of lease or .change of lease was made by the agent Carrier.

It is claimed that the findings of fact by the circuit court, and which were excepted to by the learned counsel of the appellant, and by which the new lease was established, were based upon the proposition of the respondent made directly to the appellant by letter, and its acceptance and the payment of rent in accordance with it. After the receipt of the proposition by the letter dated June 28, 1878, the appellant paid several months’ rent at the changed rate of the new lease, and thereby acquiesced in its terms, if he did not ratify expressly the new lease by making such payments without any refusal of the proposition, or taking any exceptions to the terms of the lease proposed in the letter. It is true that Carrier testifies that, when the respondent informed him of the proposition sent to the appellant by the letter, he said the appellant would not accept it. This, at most, was the mere expression of an opinion by Carrier that the appellant would not accept the proposition, without rejecting it as the agent of the appellant, or claiming any authority to reject it; and after this, this same agent paid for his principal, the appellant, the rent according to the terms of the proposed new lease.

We think the circuit court 'may well have found, from these facts, the new lease as claimed in the complaint; at least, there is no such preponderance of the evidence against the findings upon this question, as would warrant this court in reversing them.

By the Court. — The judgment of the circuit court is affirmed, with costs.