Frank v. Woodcock ( 1914 )

Mr. Justice Bean

delivered the opinion of the court.

The trial court by a special verdict separately submitted to the jury the various items claimed upon each side of the cause, and the jury made findings thereon. This obviates the necessity of considering objections and exceptions made and taken by the defendant to evidence in regard to those items which were disallowed to plaintiff. The main point relied upon by counsel for defendant for a reversal of the judgment is the alleged error in the instructions of the court in regard to the liability of an agent: Assignments of error 25 and 26. Upon this question the court instructed the jury as follows:

“It is a rule of law that an agent who enters into a contract in his own name, without disclosing the identity of his principal, renders himself personally liable, even though the third person knows that he is acting as an agent, unless it affirmatively appears that it was the mutual intention of the parties to the agreement that the agent should not be bound. ’ ’

The court further instructed the jury as follows:

“In order to avoid personal liability, it was the duty of "Woodcock to disclose to plaintiff that defendant Woodcock was acting in a representative capacity, and also to disclose to plaintiff the identity of his principal. But, if plaintiff knew the identity of the principal, Woodcock then did not owe any duty of disclosing the identity of his principal. ’ ’

To the foregoing instructions counsel for defendant objected and duly saved exceptions.

It is the contention of defendant’s counsel that the liability of the agent depends upon his intention in that regard, and not upon the mutual intention of the parties, and that the intent of the party, other than the agent, is immaterial. With this claim we are unable to agree. The instructions given by the trial court are based upon the law as laid down in 31 Cyc. 1555 et seq. We approve these instructions. The liability of a party, or the question of who is liable for the payment of an obligation incurred by a contract made between-two persons, is an important part of such contract, and it is just as essential that the minds of the parties should meet upon this question as upon any other. The main inquiry in such cases is: To whom was credit extended, and who assumed the obligation? Hence, we approve the rule as laid down in Cyc. supra, that:

“An agent who enters into a contract in his own name without disclosing the identity of his principal renders himself personally liable, even though the third person knows that he is acting as agent, unless it affirmatively appears that it was the mutual intention of the parties to the contract that the agent should not be bound.”

It is the claim of plaintiff that, at the time the contract was made, he was not aware that defendant was acting as the agent of anyone. The evidence tended to show, and the jury found, that defendant made the contract in his individual capacity. The defendant pleads a different contract, and it was incumbent upon bi-m to prove it, which he failed to do to the satisfaction of the jury. Defendant requested no additional or different instructions. There were intricate questions ' of fact involved in the case which were fairly submitted to the jury. An examination of the record discloses no error therein.

The judgment of the lower court is therefore affirmed.

Affirmed.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice Ramsey concur.