Powell v. Wade , 109 Ala. 95 ( 1895 )

BRICKELL, C. J.

A principal, whether disclosed or undisclosed, is bound by the acts or contracts of the agent, within the scope of the authority conferred. As he is bound by the contracts, whether oral or written, though made by and with the agent, in his own name, he may, in his own name, maintain an action thereon. If the contract is in writing, in the name of the agent alone, it is permissible by parol to show that in the making of the contract the agent was acting for the principal. Such proof does not contradict the writing; it only explains the transaction. — Ford v. Williams, 21 How. (U. S.) 287; Bishop on Contracts, § 1080; Mechem on Agency, § 769. In such action, the burden of proof lies on the principal to show the agency, and that in the making of the contract the agent was acting for him. This is the proposition asserted in the second instruction given at the instance of the defendant, and in the giving of it there was no error.

But the first instruction was erroneous. A count upon an account stated may be supported by evidence that the account was stated with the agent of the plaintiff, or by admissions made to an agenc. — 2 Green. Ev. § 126.

The third instruction contravenes the principle we have stated — that the plaintiff, though undisclosed as the principaland though the agent may may have contracted in his own name, may,'in his own name, maintain an action on the contract. The instruction was erroneous.

For the errors pointed out, the judgment must be reversed, and the'cause remanded.