Huisenga v. Parkman , 231 Mont. 210 ( 1988 )

No. 87-414
TF THE SUPREME COURT OF THE STATE OF MONTANA
1988
HERMAN HUISENGA, d/b/a HUISENGA
ADVERTISING, BILLINGS, MONTANA,
Plaintiff and Respondent,
-vs-
BRUCE PARKMAN, f/d/b/a SUN BURST
MEADOWS & WHITNEY DEVELOPMENT COMPANY,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Folmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Tipp, Skjelset, Frizzell & Buley; Raymond P. Tipp,
Missoula, Montana
For Respondent:
Robert E. LaFountain & Charles E . Snyder, Billj.ngs,
Montana
Submitted on Briefs: Feb. 11, 1988
Decided: March 22, 1988
Filed: MAR 2 2 4988
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Bruce Parkman appeals a directed verdict entered
against him by the District Court of the Thirteenth Judicial
District, Yellowstone County, Montana. The court found that
he was liable for $7,622.11 of debt incurred by his former
employer, Whitney Development Co., a partnership involved in
land development, and costs of $55.40. We reverse and
remand.
By the start of January, 1982, Parkman was the general
manager at Whitney Development Co., but he held no ownership
interest in the partnership. Herman Huisenga, an advertising
consultant in Billings, had done considerable work for
Whitney Development Co., which owed Huisenga's firm
$13,122.11. When Huisenga learned that Whitney Development
Co. was about to incorporate under another name he approached
Parkman, with whom he had been negotiating on payment, with a
memorandum prepared on Huisenga's letterhead. The memorandum
read :
January 11, 1382
AGREEMENT TO COMPLETE ACCOUNT
WITH HUISENGA ADVERTISING
Dear Mr. Huisenga,
To complete payment of our account
due to you for Whitney Development
Company of $13,122.11 on 12/31/81, we
will pay you $1500 on 1/12/82 and monthly
payments of $1000 or more each month,
with total paid by June 30, 1982.
Signed,
Bruce Parkman
(s/Donald R. Coverdell)
Donald R. Coverdell
Accepted,
(s/H.R. Huisenga)
H.R. Huisenga
The other signatory, Donald Coverdell, was a foreman for
Whitney Development Co. and also had no ownership interest.
Although the note is dated January 11, 1982, there is a
dispute as to the date the note was signed.
Huisenga received $5,500 from Whitney Development Co.
and its successor corporation, Sun-Sational Development Corp.
When no further payments were made, Huisenga filed suit
against Parkman to collect the $7,622.11 balance. A jury
trial was held on August 3, 1987. Upon the completion of
testimony, the court granted Huisenga's motion for a directed
verdict reasoning that Parkman was personally obligated since
he had signed the memorandum, which neither named
Sun-Sational as a principal nor noted Parkman's
representative capacity, as required by S 30-3-403 (2) (a),
MCA.
Section 30-3-403, MCA, states in part:
(2) An authorized representative who
signs his own name to an instrument:
(a) is personally obligated if the
instrument neither names the person
represented nor shows that the
representative signed in a representative
capacity;
(b) except as otherwise established
between the immediate parties, is
personally obligated if the instrument
names the person represented but does not
show that the representative signed in a
representative capacity, or if the
instrument does not name the person
represented but does show that the
representative signed in a representative
capacity.
On appeal we need only to determine, while viewing the
evidence in a light most favorable to Parkman, whether a fact
question for jury determination existed. Jacques v. Montana
National Guard (1982), 199 Mont. 493, 503, 649 P.2d 1319,
1325. If reasonable jurors could derive various conclusions
from the evidence then a directed verdict is improper.
Solich v. Hale (1967), 150 Mont. 358, 361, 435 P.2d 883, 885.
On the date the note was drafted, January 11, 1982, the
successor corporation Sun-Sational Development Corp. was not
even in existence. Articles of incorporation were signed on
January 12, 1982 and the Certificate of Incorporation was not
issued by the Secretary of State until January 13, 1982. The
actual debtor on January 11, 1982 was the partnership
mentioned in the note. Therefore the requirements of
S 30-3-403(2), MCA, were met and par01 evidence could be
considered in establishing between the immediate parties
whether or not the defendant signed in some type of
representative capacity and that question should have been
allowed to go to the jury.
Parkman insisted that he had been a salaried employee,
not a partner. He said he never meant to assume any personal
obligation but only to assure Huisenga that his bill would be
considered and paid, if possible, by the new corporation.
Parkman said he did not mention any agency capacity because
he read the memorandum and did not believe it to be a
personal guaranty. He added that the memorandum was signed
on January 14, 1982, after Coverdell returned from Helena
with the Certificate of Incorporation.
The court's directed verdict rests on the assumption
that Parkman did sign the memorandum after the articles of
incorporation had been accepted. There was evidence from
Huisenga, himself, however, that Parkman signed before the
articles of incorporation were accepted. Thus, a fact
question arises and a jury could reasonably have decided that
the memorandum was signed before the articles of
incorporation were filed. In that case, the memorandum would
have referenced the employer, Whitney Development Co., and
the jury would be entitled to consider the par01 evidence to
determine if there was an understanding that Parkman was
signing as a representative. Accounts Management Corp. v.
Lyman Ranch (Mont. 1987), 748 P.2d 919, 923, 44 St.Rep. 2233,
2237; Clarks Fork National Bank v. Papp (Mont. 1985), 698
Reversed and remanded.
we concur: / \ I
Mr. Justice John C. Sheehy did not participate.