Harris v. Silverman , 154 Mo. App. 694 ( 1911 )

NIXON, P. J.

This action was originally brought on six promissory notes, negotiable in form, executed by the defendant, L. B. Silverman, and M. B. Oshinsky, and payable to the order of I. Harris. The petition contained six counts. Plaintiff dismissed as to the second, third and fourth counts before the trial. A trial was had on the remaining counts before a jury which returned a verdict in favor of the plaintiff on the fifth and sixth counts for the principal sum of $3500. Defendant has appealed.

The' petition was in the usual form, alleging the execution, maturity and nompayment of the notes. The answer contained, first, a general denial, and second, a plea of payment as to each of the notes in the fifth and sixth counts. There was no affidavit filed in the case denying the execution of the notes. The reply was a general denial.

On the trial, the testimony was voluminous on the question of payment. The verdict of the jury on that issue was against the appellant and no point is made in this court on that issue.

The only question presented for our consideration and on which the stress of the appeal is thrown, is as to whether I. Harris, the plaintiff, was the real party in interest so as to enable her to maintain the action.

At the trial, the plaintiff introduced the notes and rested. Defendant then called to the stand one Henry Harris who, on being asked if his name was I. Harris, answered that he was the husband of I. Harris; that I. Harris was the plaintiff and had brought suit on these notes. ITe testified, however, that for nineteen years he had been doing business under the name of I. Harris; that these notes were executed by the defendant and. delivered to him. Then follows a mass of evidence as to how and where and when the notes were signed, the business relations of the several men who took part in a series of transactions extending over a number of years and in many places, the attempt to show payment, the destruction of notes, the accounts of Henry Harris as I. Harris in different hanks; in all, a record of questions, burdened with suspicion of fraud, and many reluctant, parrying answers on the part of the witness, Henry Harris, so widely known as I. Harris.

A prolonged discussion is not necessary to a determination of this case. It will be remembered that appellant placed Henry Harris on the stand and elicited the answers on which appellant bases his objection to the regularity of the judgment. Viewed from the standpoint of the substantial rights of the parties, seemingly this appeal is an effort to escape by the technicality route the payment of notes which appellant confessedly executed and for which he received full value and which the jury found have not been paid. At the very outset, appellant’s witness, Henry Harris, stated that I. Harris was his wife, and that it was her suit, and that he was transacting the business as the agent of his wife, I. Harris. Whether or not this was true is not our function to decide; it was evidence brought into the record by the appellant. We have no doubt, after reading the evidence, that defendant thought he was dealing with the man whom he knew and had done business with as I. Harris.. Henry Harris testified as to the ownership of the notes in suit as follows: “Q. You said it belonged to you? A. I said nothing of the kind. Q. Who did you say it belonged to? A. I. Harris.” And he stated that I. Harris was his wife for whom he acted as agent. There was no testimony that Henry Harris owned the notes.

“It is now settled that when a simple contract, whether verbal or written, is entered into by an agent in his own name, but really acting on behalf of an undisclosed principal, and the fact of the agency is unknown at the time, but the parties suppose that they are dealing with him on his own individual account, the principal may bring an action and recover upon it as though he had been the party expressly contracting.” [Pomeroy’s Code Remedies (4th Ed.), sec. 79, pp. 115-116, and cases cited.] What difference, on principle, can it make that the agent was in fact known as I. Harris and that his undisclosed principal was I. Harris? Defendant dealt with a man whom he knew as I. Harris, supposing he was dealing with the principal. Defendant, when sued by I. Harris, places on the stand as his witness the man whom he had supposed was the principal and such witness testifies that he was merely acting as the agent of I. Harris, his wife. The defendant is bound by the statements of his own witness. The case is not unlike that of Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300. Suppose Henry Harris had been named Isaac Harris and had done business and become known as I. Harris and this same transaction had taken place in the same way. If defendant made him his witness and elicited the fact that he (Isaac) was in fact acting for his wife whose name happened to be Ida Harris, and the witness disclaimed interest in the suit, saying the notes belonged to I. Harris, his wife, could defendant complain? And, upon the theory that the notes were made in the name of I. Harris for the benefit of Henry Harris, I. Harris, as a trustee of an express trust would have a right to maintain the suit as plaintiff without joining the beneficiary. [Sec. 1730, R. S. 1909; Jones v. Kansas City, F. S. & M. Ry. Co., 178 Mo. 528, 77 S. W. 890; Lee v. Mo. Pac. Ry. Co., 195 Mo. 400, 92 S. W. 614.]

Within the meaning of the law, Henry Harris was a privy to the suit, and he is as conclusively bound by the judgment as though he had been made an actual party to the record. The appellant is therefore protected against another suit by him. on these notes. Judgments and decrees conclusively bind all parties or persons in privity, whether of estate or blood or law. [Crispen v. Hannavan, 50 Mo. 415.] The fundamental rule of law in such cases is, that a matter once adjudicated by a court of competent jurisdiction, may be invoked as an estoppel in any collateral proceeding, when the same parties or their privies, or one of the parties and the privy or privies of the other allege anything contradictory to it. And those who assume a right to control or actively participate in the trial or its management, though not formal parties, will be concluded. [State ex rel. Subway Co. v. St. Louis, 145 Mo. l. c. 567, 46 S. W. 981, and cases cited.]

Indeed, a very casual examination of the record emphasizes the importance and wisdom of our statute (Sec. 2082, R. S. 1909) prohibiting appellate courts from reversing judgments unless error materially affecting the merits of the action is made to appear. Finding no material error, the judgment is affirmed.

Cox, J concurs; Q-ray, J., having been of counsel, not sitting.