Austin vs. Moe. counsel. There was a duty, in such case, resting upon the counsel as well as upon the court. The court had given the jury a proper instruction that there must, in such a case, be a contract. All agree that such is the law. He did not go further, and call the attention of the jury to any facts or circumstances by which they might determine whether there was a contract, but simply told them that the defendant had testified that there was, and the plaintiff had testified that there was not, such a contract. It must not be forgotten that, upon this question of the contract liability to pay the defendant for her board and support after such change in her financial circumstances in 1880,-- and it is conceded that such liability must rest upon contract, the answer of the defendant tenders but one issue, and that is that it was expressly agreed between the parties at that time that the defendant should be paid a reasonable sum for her board, etc., in the future. It is true, the answer sets out such change in her support and treatment at that time, but it does not allege or intimate that a contract should be inferred or implied therefrom, but alleges, in connection therewith, that such express contract was made. And, furthermore, the defendant in his testimony states two express contracts, one as above, and the other that this note should be paid by the defendant furnishing her with a home and support in such manner for the future. The answer sets up this contract for board, and pleads a setoff therefor of three dollars per week. These contracts are specifically denied by the plaintiff in her testimony. There was nothing, therefore, in the pleadings or evidence to apprise the court or the opposite counsel that the learned counsel of the defendant relied upon these facts and circumstances to establish a contract by inference or implication, and the charge of the court squarely and fully met the case so made by the pleadings and evidence; and the jury were instructed that, to allow the defendant's claim, they must find such contract Austin vs. Moe. so alleged was actually made, and went no further. This instruction was correct and sufficient. Here there was a duty clearly imposed upon the defendant if he wished the court to go further and instruct the jury that they might consider such facts and circumstances with a view of ascertaining therefrom that such a contract was made. His counsel should have specially requested the court to so instruct the jury, or called the attention of the court then and there to such now alleged omission. If, after such a request, the court had refused to do so, it would quite probably have been an error fatal to the verdict. As a general rule, such a contract is inferred from facts and circumstances, and much oftener than established by positive evidence. Emerson v. Durand, 64 Wis. 111. I have spent more time upon this case, because it more clearly than most cases squarely and directly presents this question of the relative duty of the court and the counsel as to an omission to instruct the jury upon some matter, very material perhaps, but not obviously within the pleadings or the evidence. Such omissions are frequently alleged as error in this court, and the true rule should not be overlooked. When the court has instructed the jury upon all the main questions involved, and correctly, then, if counsel desire additional or more specific instructions, they must request them to be given or the omission cannot be alleged as error. Brower v. Merrill, 3 Pin. 46; Lachner v. Salomon, 9 Wis. 129; Pilling v. Otis, 13 Wis. 495; Knox v. Webster, 18 Wis. 406; Karber v. Nellis, 22 Wis. 215; Weisenberg v. Appleton, 26 Wis. 56; Roebke v. Andrews, 26 Wis. 311; and many cases since decided. In this case, therefore, the omis sion complained of was not the error of the court. By the Court. The judgment of the circuit court is affirmed. Pickert vs. Marston and another. PICKERT, Appellant, vs. MARSTON and another, Respondents. March 4-March 22, 1887. Agency: Sale of chattels: Warranty. An agent employed to sell has no implied power to warrant unless the sale is one which is usually attended with warranty. APPEAL from the Circuit Court for La Crosse County. The following statement of the case was prepared by Mr. Justice CASSODAY: The complaint in this action was, in effect, upon an account for goods, wares, and merchandise sold and delivered by the plaintiff, of Boston, to the defendants at La Crosse, at their request, September 23, 1884, on a credit of sixty days, at the agreed price of $78.25, and which were reasonably worth that sum; that no part of it had been paid, but was due, with interest, from November 23, 1884, for which judgment with costs was demanded. The answer was to the effect that about September 1, 1884, the defendants contracted with the plaintiff to send them a quantity of codfish, which he guarantied should stand shipment and arrive in La Crosse in good, sound, merchantable condition; that when the fish shipped arrived in La Crosse they were spoiled and wholly worthless; that the defendants, supposing them good, paid thereon $20 freight, and that their storage and care thereof was worth $10, and hence counterclaimed $30. The plaintiff, replying, denied the counterclaim. From the judgment in favor of the plaintiff and against the defendants in the justice's court, the latter appealed to the circuit court; and, upon the retrial therein, the jury found for the defendants and assessed against the plaintiff the freight paid to the amount of $10. From the judgment entered thereon the plaintiff appeals. For the appellant there was a brief by Bleekman, Tour VOL. 68-30 man. Pickert vs. Marston and another. tellotte & Bloomingdale, and oral argument by Mr. BlockTo the point that the agent had no implied authority to warrant unless that was the usage of trade as to the particular class of goods in question, they cited Story on Agency, secs. 60, 87, 96, 106, 225-6; Addison on Cont. sec. 631; Benjamin on Sales, sec. 624; 1 Pars. on Cont. 60, 61; Atlas Mining Co. v. Johnston, 23 Mich. 36; Kornemann v. Monaghan, 24 id. 36; McKindly v. Dunham, 55 Wis. 515; Komorowski v. Krumdick, 56 id. 23; Walls v. Bailey, 49 N. Y. 464; F. & M. Nat. Bank of Buffalo v. Sprague, 52 id. 605; Lawry v. Russell, 8 Pick. 360; Herring v. Skaggs, 62 Ala. 180; S. C. 34 Am. Rep. 4; Cooley v. Perrine, 41 N. J. Law, 322; S. C. 32 Am. Rep. 210; Upton v. Suffolk Co. Mills, 11 Cush. 586; Jones v. Warner, 11 Conn. 40; Goodenow v. Tyler, 7 Mass. 36. C. L. Hood, for the respondents. CASSODAY, J. The evidence is undisputed that the fish were in good condition when shipped to the defendants from Boston, and worthless when they reached the defendants at La Crosse. The defendants made the contract of purchase at La Crosse with the plaintiff's traveling salesman, who resided at Chicago. There was evidence tending to prove that the fish shipped were not the fish ordered; and also that by the terms of the contract the fish ordered were guarantied by the traveling salesman to reach the defendants in La Crosse in good merchantable condition. The evidence on the part of the plaintiff was to the effect that the traveling salesman had no authority to make such guaranty, nor any assurance as to the condition in which the fish should be on reaching La Crosse; and that he so informed the defendants about a month prior to the taking of the order in question. The issue made does not arise between the principal and agent, but between the principal and the defendants who made the contract of purchase Pickert vs. Marston and another. with the agent. The agency and the right to contract for the sale are admitted. But the authority to make the guaranty or warranty is denied. Beyond question, an agent may bind his principal if he does not exceed the power with which he is ostensibly invested, notwithstanding he has secret instructions from his principal to the contrary. Putnam v. French, 53 Vt. 402; Bentley v. Doggett, 51 Wis. 224; Bouck v. Enos, 61 Wis. 664. Assuming that the traveling salesman had no actual authority to make such guaranty or warranty of the fish, then it became important to determine whether his authority to sell or contract for the sale clothed him with an implied authority to make such guaranty or warranty. "The general rule is, as to all contracts, including sales," said a late learned author, "that the agent is authorized to do whatever is usual to carry out the object of his agency, and it is a question for the jury to determine what is usual. If, in the sale of the goods confided to him, it is usual in the market to give a warranty, the agent may give that warranty in order to effect a sale." 2 Benj. Sales (4th Am. ed.), § 945, p. 824. The text is supported by the citation of numerous authorities. Bayliffe v. Butterworth, 1 Exch. 425; Graves v. Legg, 2 Hurl. & N. 210; Dingle v. Hare, 97 Eng. C. L. 145; Upton v. Suffolk Co. Mills, 11 Cush. 586, 59 Am. Dec. 163; Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4; Smith v. Tracy, 36 N. Y. 82; Ahern v. Goodspeed, 72 N. Y. 108. See Thus, in Dingle v. Hare, supra, ERLE, C. J., observed: "The strong presumption is that when a principal authorizes an agent to sell goods for him he authorizes him to give all such warranties as are usually given in the particular trade or business;" and BYLES, J., added: "An agent to sell has a general authority to do all that is usual and necessary in the course of such employment." So in Smith v. Tracy, supra, PORTER, J., speaking for the court, said: "The rule applicable to such a case is stated with discrimination and |