NOTRE DAME LAW REPORTER JUNIOR MOOT COURT Cases Reported. (Chas. J. Mooney) CAUSE NO. 5 and was not liable to the mfor any- thing he did subsequently, being free Andrew White and Samuel Small, to contract and transact for himself Partners as White & Small in the sale of his land. VS. Should plaintiffs recover or not Andrew Johnson and why? Archibold Duncan and Andrew Johnson, the defendant, Lewis L. Van Dyke in writing authorized the real estate Attorneys for Plaintiffs. plaintiffs, to firm of White & Small, Charles M. Dunn and for sell a certain tract of real estate Edward J. Meagher, him at a stated price and on certain Attorneys for Defendant. terms also stated. The plaintiffs, pursuant to such written authority, PLAINTIFFS' POINTS AND entered into a written contract with AUTHORITIES Whitcomb & Kellar for the sale of de- The plaintiff contends in this case fendant's said real estate. Plaintiff that he was the procuring cause of executed said contract of sale as the sale and therefore entitled to agents for the defendant, referring compensation for his services from to themselves as agents in the body defendant. of the contract and signing them- The general rule is that a broker selves as agents. has performed his contract and is The sale thus contracted for, how- entitled to his compensation when he ever, was so different in character of is the procuring cause of the sale af- price and terms and conditions from fected with the purchaser, and the the sale the defendant had authoriz- rule is the same event though the sale ed plaintiffs to make, that he refused is affected by the owner himself. to close the deal as thus mase and In the case of Hoadley v. Savings ref usen longer to recognize the plain- Bank of Danbury, 44 L. R. A. 321, tiffs as agents and in fact discharged the broker merely called a person's them by letter expressly revoking attention to a certain piece of prop- the agency. Later the defendant erty, and gave him information as to and Whitcomb & Keller got together how to obtain admission thereto. and closed the deal and carried out Later the owner, without the broker's the hontralt on the terms and condi- knowledge, took up the negotiation tions as stated therein. and completed the sale. Here the Plaintiff demanded a commission Conn. court held the broker the pro- from defendant which was refused on curing cause, and was entitled to the ground that plaintiffs acted whol- compensation. ly outside their authority in entering Also in the case of Platt v. John, 9 into such a contract of sale, that he, Ind. App. 58. the same proposition defendant, had refused to recognize was applied. In this case the broker their action in making such a con- secured a prospective buyer and in- tract, had in fact discharged them. troduced him to his employer, which NOTRE DAME LAW REPORTER resulted in a sale between them. does not entitle the broker to his- com- Here the Indiana Supreme Court mission. Vol. 4 Amer. & English Law said he was the "procuring cause" 2d. Ed. 978. Then in Crook et al. vs. and entitled to compensation. Forest, Ala. 1897 22 So. 540 It was held in the opinion that a land owner The following citations support by employing a broker does not bar this general proposition 62 Mich. 543. his right to sell the land if he does it 93 Am. Dec. 718. 22 Am. Dec. 441. in a fair and honest way and' if he "Mechan" on this proposition says: notifies his agent before the sale is "If an agent has done all that he un- completpetd, further an agent cannot dertook to do, he is entitled to com- recover for a commission if he does pensation, even though the principal not procure a party ready, willing receihed no benefits, or failed or re- and able to buy on the terms and fused to avail himself of the advan- price made by the principal. These tages secured. Thus a broker em- two authorities show that the defend- ployed to effect a sale of property is ant in our case was entitled to revoke entitled to compensation when he has the agency which he did with a letter found a purchaser ready, willing and and sell the land to the customer if able to buy on the proposed terms, does so with no intention of defraud- even though the principal does not, ing the agent and there is no such or cannot through defective title or fraud alleged in the case before th,- otherwise complete the sale." court. To support this contentior further Mecham on Agency says pp. DEFENDANT'S POINTS AND 964-9666: "The broker must show AUTHORITIES before he can recover commission, that he has completed his undertak- 1. An agency not coupled with an ing according to its terms, or that its interest may be revoked at any time. completion was prevented without John Alexander et al vs. Sherwood his fault by the principal. What con- Co. 77 S. E. 1027. This principle stitutes a completion, however, is a shows that the defendant may dis- question of no little difficulty in many charge the broker at anytime since cases, depending as it does upon va- the broker is not coupled with an in- gue and indefinite agreements be- terest. tween the parties. The duty of the he has 2. If the broker attempts unsuc- broker is performed when a purchaser ready, willing cessfully to effect a sale and his pro- procured upon the terms posed purchaser abandons the idea and able to purchase particular terms of buying but is afterwards induced specified or if no he procurep a to do so by the principal or by anoth- are agreed upon, when to whom the principal er person without being in any way purchaser induced by the broker, the latter is sells." As may be seen in our case not entitled to his commission. So the terms were specified and the procure a pur- where the broker has had a reasona- agent was unable to to purchase at ble time in which to affect a sale and chaser who was able does not do so the principal may com- the price agreed upon and therefor plete the sale and the fact that the was discharged by a letter giving sale is made to the same customer him actual notice of his dismissal. NOTRE DAME LAW REPORTER

CAUSE NO. 6 Clyde A. Walsh and Henry W. Fritz, Mary Hardesty Attorneys for Plaintiff. VS. James K. O'Toole anh Anna Jamison Francis Franciscovich, Action for Damages for Alleged Attorneys for Defendants. and Battery. Assault PLAINTIFF'S POINTS AND Demand $500. AUTHORITIES Mrs. Anna Jamison, the defendant, woman may appoint an was the owner of a number of tene- A married Agent and her husband may be so ment flats which she rented, located Section 48 Mechem on in the City of South Bend. For more appointed: Agency "Where a married woman is than a year her husband collected competent to act by Agent her hus- the rents and accounted to her for may be appointed as the them, and during this year the plain- band Case of Shane v Lyons tiff had been a tenant of Mrs. Jami- Agent." Mass. 199-51 N. E. 976, son and had paid the rent to Mr. (1898) 172 Rep. 261. Jamison. 70 Am. St. in this case: "We see On August 15, 1919, Mrs. Jamison Court said no reason for regarding her as in- took from her husband the authority of authorizing any act to be to collect these rents, intending tc capable in her name, and her appoint a firm of real estate agents done by him her from re- to collect her rents thereafter. On behalf, or for shielding sponsibility." September 1st, following, Mr. Jami- Married woman as principal-it son, notwithstanding the revocation a settled principal of law that of his authority to do so, called as is now may be a principal usual to collect the rent from Mrs. a married woman agent. Mechem on Hardesty. Mrs. Hardesty repre- and appoint her Section 42. Statutes in most sented at the time that she was un- Agency the common law able to pay the rent; because of her states have removed for married women and refusal or inability to pay Mr. Jami- disability with the power to son became quarrelsome and in fact she is clothed her own affairs, and cer- struck Mrs. Hardesty several times manage to an agent in the face. tainly the power to appoint she is For this assault and battery Mrs. or attorney to do that which of doing in person. Hardesty brings action against Mrs. capable of Revocation-upon revok- Jamison. Mrs. Jamison knew noth- Notice of a general agent, ing about her husband's attempt to ing the authority give notice of re- collect the rent on this occasion and, the principal must had after learning of it, immediately vocation to persons who have the agent as communicated to Mrs. Hardesty the previous dealings with to be bound fact that she had prior to the difficul- such, or he will continue ty with her husband taken from him by agent's acts. must be actual-and all authority to collect the rents, by The notice to those who have expressly forbidding him to collect must be extended reliance upon the the rents September and thereafter. extended credit in public notice Who should recover? authority and general NOTRE DAME LAW REPORTER to others. Mechem on Agency. Sec- "It matters not that he exceeded the tion 117. powers conferred on him by his prin- Court in Diversity v Kellog 114 cipal and that he did an act which Ill. Reports says: "Where a party is the principal was not authorized to shown to have been the agent of an- do so long as he acted in scope of au- other in a particular business or con- thority and line of duty, or being en- tinues to so act within the scope of gaged in the service of the defendant, his former authority it will be pre- attempted to perform a duty pertain- sumed that his authority still contin- ing which he believed to that service. ues, and will bind his principal unless In 116 Ill. App. 80 the Court held the persons with whom he'acts have that principal was liable for assault been notified that his agency has of agent in attempting to collect an ceased. installment due on furniture sold by Burns Revised Statutes. Section the principal to the complainant. 5120 (1882) Removes the common Supporting this C. B. & Q. R. R. v law disability of married woman in Bryan 90 Ill. 126. this state and allows a married wo- Vol. 21 R. C. L. page 846- A duty man to contract, appoint an agent. rests upon every man in the manage- Principals liability for Tort of ment of his own affairs whether by Agent-Mechem on Agency Sec. 98- himself or by his agents or servants Both principal and agent are liable so to conduct them as not to injure for tort committed in scope of his another, and that if he does not do so, authority. and another is thereby injured, he In the case of Bergman v Hen- shall answer for the damage. 1 Atl drickson 81 N. W. 304 The court said 709-91 Am. Dec. 425. that if the assault was committed for Page 94 Cyc. of Law Vol. 5. It is the purpose of compelling payment sufficient to make the master liable if the servant was acting within the the wrongful act of the servant was scope of his employment and the committed in the business of the mas- master was liable for plaintiff's in- ter, and within the scope of his em- juries, though he may never have au-: ployment, even if he departed from thorized such method of collection the instruction of the master. and may have expressly probited it. It is an old rule of law that "where Mechem on Agency page 135 Sec. one of two innocent persons must 253 says: "The older cases hold the suffer for acts of another, the person principal not liable to third persons who caused or set in motion the for the agent's wilful and malicious agency will be held liable. acts, but the modern rule is that he is Case of 109 Fed. 369-45 N. Y. 549- liable for these also if the agent com- 71 N. W. 427-44 Iowa 318-7 N. W. mitted them while he was acting in 368. the execution of his agency and with- DEFENDANT'S POINTS AND in the scope of his authority. AUTHORITIES Cases supporting this: Singer Mfg. Co. v Rahn 132 U. S. 518. Southern The doctrine that in order that the Express Co. v Brown Am. St. Rep. principal not be bound by the acts 306 (67 Miss. 260). of an agent whose authority has been In 90 N. Y. 77 Judge Earle says: revoked, notice must be given to NOTRE DAME LAW REPORTER third parties, has no application in for goods which he claims were tak- this case. en by the customer." 20 N. W. 476 .... "The doctrine 56 Hun. 506 .... "A drayman sent that a discharged agent can bind his by the purchaser to get some goods principal to the extent of the author- from the warehouse of the defendant ity with which he was apparently objected to receiving certain damag- clothed has no application beyond ed packages and was assaulted by the claims of the agent." the employe of the defendant who Even if the authority of the agent was sent by the defendant to superin- had not been revoked, this principal tend the loading of the goods. It would not be liable for the assault. was held that the defendant was not There is a clear-cut distinction be- liable for the assault as the employe tween torts of the agent which are was acting outside the scope of his merely negligent and unskillful and authority. ma- those which are in themselves CAUSE NO. 7 licious, intentional and unlawful. McManus vs. Cricket (1 East Pittsburg, Cincinnati, Chicago & Company 160) . . . . "When a servant quits St. Louis Railroad sight of the object for which he was vs employed, and without having in John Hamilton pursues view his master's orders, Action for Collection of Stock that which his own malice suggests, Subscription. he is no longer acting in the pur- suanse of the authority given him FACTS and his master is not liable for sulh Defendant signed and delivered to act." the plaintiff's agent, the following It is clearly beyond the authority written instrument: of an agent who has the mere author- "We, the undersigned, agreed to ity to collect rents, to assault and pay fifty dollars ($50) for each batter a tenant. share of stock stated and annexed to 82 S. W. 552 .... "The defenhant our names, to be paid in installments is not liable for the assault of his col- of 5 per cent levied every sixty days lecting agent upon the plaintiff, the by the Board of Directors of the agent in so hoing not being about his Company. No assessment is to be master's business and not acting made till the subscriptions amount to within any authority delegated to the sum of $600,000. The railroad him by the master. To assault and is to be constructed within a mile of beat a creditor is not a recognized or the subscriber's place." usual means resorted to lor the col- Defendant signed and opposite his lection of a debt nor is it one calcu- name set "50 shares." lated to bring about a settlement." The $600,000 was later fully sub- 137 Pac. 428 .... "A merchant is scribed and the Board of Directors not liable for the act of his general levied the assessments upon the sub- canager authorized to collect for scribers to be paid every sixty days. goods sold and to recover goods The defendant refused to pay his sub- wrongfully taken, in assaulting a cus- scriptions, because, as the facts are, t)mer to whom he has gone to collect John Doe, the company's agent who NOTRE DAME LAW REPORTER

solicited the subscription and to present fact; for, although a much whom the paper was delivered, be- looser significance has been occasion- fore and at the time of the signing ally intimated, yet it is obvious that of the subscription, stated to defend- an intent not to perform a promise ant that defendant would not be re- (i. e., a misrepresentation as to a fu- quired to pay any money on his sub- ture fact), or a subsequent failure scription till the railroad was built- knowingly to perform an extrinsic till the road was constructed and, agreement not embodied in the writ- worked in that county; that the road ing, cannot be included in the term had not been constructed in that 'fraud.' It seems to be a disregard. county; .that he, the defendant, re- for this distinction that is in part re- lied upon the statements of the com- sponsible for the anomalous attitudc pany's agent thus made and signed of the Pennsylvania court towards and delivered the instrument in ac- the general rule." tion on the belief that no money Referring to the foregoing quota- would have to be paid thereon till the tion 18 L. R. A. (N. S.) 434, says: i-oad was constructed; that he, de- "The only cases which have been dis- fendant, was induced by such state- closed holding that fraud of this gind ment to make the subscription and is sufficient to warrant the allowance that, but for such representation of of parole evidence are those of Penn- the company's agent, he would not sylvania." have signed the instrument; that this Where a man, who can without dif- fraud of the agent procured the sub- ficulty read, executes a paper without scription, and that, therefore, plain- reading it, trusting to the party to tiff should not recover on the sub- whom it is executetd for a statement scription in action. of its contents, or trusting to the Donnelly C. Langston and reading of it by the latter, there be- George D. O'Brien, ing no substantial reason shown for Attorneys for Plaintiff. not reading it himself, he will be Alden J. Cusick and guilty of negligence. (37 L. R. A.) Joseph I. Flick, 64 Ind. 120; 73 Ind. 198; 106 Ind. Attorneys for Defendant. 406. PLAINTIFF'S POINTS AND Thornburgh vs. Newcastle & Dan- AUTHORITY Ville R. R. Co. (14 Ind. 6) "Reliance cannot be placed upon the statements (Indiana Rule). It is a general of a soliciting agent for stock of a rule that extrinsic or parole evidence railroad company, that the terms of is not admissable to contradict, vary, the subscription, that the subscriber add to, substract from, or otherwise is asked to sign, provided for pay- modify the terms of a written instru- ment in money or supplies." ment. 17 L. R. A. 273; 6 L. R. A. 33; The foregoing citation presents the 6 Ind. 656. attitude taken by the courts of this Quotation from Wigmore, Vol. 4. state, as regards the contracts made Par. 2439: "It may be added that the by the soliciting agent of a railroad. term 'fraud' must here be understood It presents the court's attitude as to in its legitimate, narrow sense, i. e., contemporaneous oral agreements a misrepresentation of a past or and the rule in this state, as to the NOTRE DAME LAW REPORTER

introduction of such agreements is (c) Whether the representation is clearly stated in 121 Ind. 6. "Evi- of opinion or of fact is a question to dence of prior or contemporaneous be decided by the jury and not by the agreement is not admissable to con- court. Banta v Savage 12 Nev. 151. tradict, or vary the terms of a writ- 3. Opinion cannot be relied upon ten instrument or contract." unless so made as to intentionally de- According to Hughes on Evidence, ceive by putting the person off his Page 238, it is conclusively presum- guard and inducing him to act on it. ed that all extrinsic or parole agree- Jackson C Collins 30 Mich. 557. ments have been merged into the one (b) If the false statements are of written contract of the parties. Since matters peculiarly within the knowl- this is a conclusive presumption, pa- edge of the person making them and role may not be introduced to in any are affirmations of fact, the other way change the written contract. party has a right to rely on them. DEFENDANT'S POINTS AND Rouer v Truant 83 Va. 397-54 Am. AUTHORITIES Rep. 60. 1. Fraud is a false representation (c) Case in point. Statements made of fact, made with a knowledge that concerning the happening of a future it is false, or in reckless disregard as event cannot be relied on to avoid a to whether it is true or false, made subscription obtained by an agent, with an intention that it should be unless they are made fraudulently, acted upon, and actually inducing one with an intention to deceive. Jeffer- to act thereon to his damage. Anson son v Hewitt 95 Cal. 535; Armstrong on Contracts 199. v Karshner 47 Ohio 276. (a) Corporation liable for repre- CAUSE NO. 8. sentations of its agent selling stock Fifth Ave. Bank v Ferry Co. 19 L. Alfred Whitaker R. A. 331; Jewett v Valley R. Co. 34 vs Ohio 601. George Swanson (b) If corporation seeks to enforce Action for Damages, $1000, for in- subscription obtained by promoter, juries due to Defendant's alleged it will be bound by fraudulent repre- negligent driving of his automobile sentations made by the promoter to into plaintiff. induce the subscription. McDermott Plaintiff, while crossing the street v Harrison 30 N. Y. 324. in South Bend, was struck by the 2. Nothing indefinite or suspicious automobile of defendant driven at about agent's statement and defend- the time by the defendant himself. ant was not bound to investigate. Defendant crossed the street without (a) Uarole evidence is admissable obtaining the traffic policeman's sig- to prove fraud induced the giving of nal or leave to cross, and while thus the subscription. Haynes v Moore crossing and without warning, ran 17 L. R. A. 272; 6 L. R. A. 45. into plaintiff, causing injuries which (b) The mere fact that the con- occasioned doctor and hospital bills, tract is reduced to writing will not loss of time from work, to the extent prevent its being set aside for fraud of $200. in procuring it. Boyce v Grundy 28 After the injury the plaintiff met U. S. (Pet.) 120 and settled their case in this manner: NOTRE DAME LAW REPORTER defendant agreed to give to plaintiff Bully. Bull -43 Conn. 455. his certain described horse and buggy Continental Gin Co. et al. v. Arn- then and there agreed old, 153 Pac. 160-Okla. which plaintiff Must put in statu quo, then can re- settlement and com- to accept in full cover- of the plaintiff's right of promise 5 R. C. L. 899. action against defendant. Swan v. Gt. Northern Ry. Co.-168 Despite the fact of this agreement N. W. 659. North Dakota. in settlement, plaintiff brings this Accord without satisfaction only a action and defendant seeks to bar bar where so stipulated. the action by pleading the agreement Binder v. Altman, 210 Ill. App. 237. in settlement set out. POINTS AND Gerald Craugh and DEFENDANT'S William S. Allen, AUTHORITIES. Attorneys for Plaintiff. The rule that a promise to do an- Joseph Sanford and other thing is not a satisfaction is Frank 'Coughlin, subject to the qualification that where Attorneys for Defendant. the parties agree that the new prom- PLAINTIFF'S POINTS AND ise shall itself be a satisfaction of AUTHORITIES. the prior debt or duty and the new agreement is based upon a good con- The right 'of plaintiff to recover sideration and is accepted in satis- injury. damages for faction-then it operates as such and 24 L. R. A. (N. S.) 557, Kentucky. bars the action. 50 So. 449, Louisiana. 188 S. W. 638, Kentucky. Goodrich vs. Stanley-24 Conn. The facts show accofd without 613 holds that an acceptance of a new satisfaction which cannot constitute and valid promise which can be en- settlement. forced in substitution of an existing Buchart v. Barger, 114 Ind. 553- claim may be as effectual a satisfac- 17 N. E. 125. tion and extinguishment of such McKeon v. Reed-12 Am. Dec. 319 claim as the acceptance of any other -Kentucky. thing. Cases. Young v. Jones-18 Am. Rep. 279 -Maine. Smith vs. Elrod 24 So. 994. Russell v. Lytle-22 Am. Dec. 537 Allison vs. Abendroth 15 N. E. -New York. 606. Brooklyn Bank. DeGrauw et al. Nassay vs. Tomilson 42 N. E. 715. 35 Am. Dec. 569 New York. Langhead vs. Frich Coke Co. 58 Hoxie v. Empire Lumber Co.-41 A new promise is evident in this Minn. 548. Atl. 685. Also the following decisions sus- case. Whitaker agreed to the pro- taining the above proposition. mise made by Swanson (my client) 97 S. E. 90. whereby he would give up his right 45 L. R. A. (N. S.) 1062. of action to sue for damages upon 77 Atl. 874. to accept a horse 159 N. W. 717. the new agreement 171 S. W. 939. and buggy in compromise. 155 Pac. 246. Other cases. 114 Pac. 1106. Munley vs .Vermont Mut. Ins. Co. Accord and Satisfaction defined as 62 Atl. 1020. an executed agreement. Palmer vs. Yager, 20 Wis. 91.