Curtis v. Miller ( 1914 )

Williams, Judge:

In an action of assumpsit upon the common counts, plaintiff recovered a judgment, on a demurrer to evidence, and defendant was awarded this writ of error. The action is on an account for surveying land, at the request of defendant. The defense is, that defendant, as agent for a principal known to plaintiff, directed the work to be done, and' that he is not personally liable therefor. Hatcher & McGinnis, a law firm at Beckley, engaged plaintiff to do certain surveying, through plaintiff’s father as his agent. Plaintiff’s father testified that, in his conversation with Mr. Hatcher about the work, he got the impression that defendant was'having the work done for the Crab Orchard Improvement Company. He does not say that Mr. Hatcher told him that that company was having the work done. But he does say that Mr. ITatcher told him to have the bill for the work made out against Mr. S. M. Miller, the defendant. A portion of the work was done, and the bill for it made out as directed. There was some delay in the payment of the bill, and it was finally paid by the Crab Orchard Improvement Company, but not until plaintiff had gone to see defendant about it. That visit was made before the work was done for which this suit is brought. Plaintiff testified that, in the conversation that then took place, Mr. Miller said that the reason the bill had not been paid was that it had been mislaid, and further said, quoting the language of witness, “I will see that you get your money in a few days. I want you to go right on and finish up the work, and I will see that you are not delayed in getting your money for your nest work.” He also says that Mr. Miller did not inform him for whom he was having the work done, and that he was induced, by Mr. Miller’s promise, to go on and complete the work. The record does not disclose that plaintiff knew that defendant was acting as agent for the Crab Orchard Improvement Company in employing him. But it is argued that plaintiff must have known of the agency from the fact that the bill first rendered was paid by said company. That bill, however, was not paid until after plaintiff had the conversation with Mr. Miller, in which he directed him to complete the work. To collect that bill was the occasion of his visit to Mr. Miller. Plaintiff says that defendant then assured him that he would not be delayed in getting his money the next time, and requested, him to finish the work. Plaintiff’s testimony is not contradicted, and in view of it, we think it is properly inferable that defendant, in requesting him to complete the work, was acting for himself, or for an undisclosed principal. And the law is, that where an agent contracts on behalf of an undisclosed principal, whether acting within his authority or not, he makes himself liable, and if the contract is within his authority, both principal and agent are liable, and the contractee may, on discovering the principal, sue either. The impression that plaintiff’s father may have gotten from conversation with Mr. Hatcher is not sufficient evidence that he, as agent of his son, knew that defendant was acting as agent of the Crab Orchard Improvement Company.' It is not enough that plaintiff may have had knowledge which caused him to suspect the agency. If defendant wanted to escape personal liability, it was his duty to disclose his principal in some unmistakable manner, in order that plaintiff might know to whom to look for his pay. “The duty is upon the agent, if he would avoid personal liability, to disclose his agency, and not upon others to discover it, and if he fails so to do, and deals with persons unaware of his agency, he must answer personally for the liabilities he contracts; and if he does not make such a disclosure the presumption is that he intended to bind himself personally.” 2 Clark & Skyles on Agency, sec. 568c.

“A person contracting as agent will be personally responsible, where, at the time of making the contract, he does not disclose his agency; and in such case the principal is also responsible.” Poole & Co. v. Rice, 9 W. Va. 73.

‘ ‘ The fact that the agent discloses the circumstance that he is acting as an agent for another does not relieve him from liability if he does not disclose who that other is; in such cases, if the terms of the contract are sufficient to bind him, the agent will generally be treated as the principal, and be held personally liable on the contract, to the same extent as if he were the real instead of the ostensible principal, unless it clearly appears that the intention was to contract as agent only, and that the other party so understood; though he after-wards discloses the principal’s name.” 2 Clark & Skyles on Agency, sec. 569.

Defendant offered no testimony, and, upon the demurrer to evidence, we must give plaintiff’s testimony all the credence that a jury could have given it, and we must consider all fair and reasonable inferences that'may be drawn from it. In other words, we must consider the case, as upon a motion to set aside a verdict rendered upon. the. evidence. So considering it, we think it can fairly be inferred that defendant designedly concealed his principal, if he acted as agent.

That the labor was performed and the charges therefor aré reasonable are not denied. We think the testimony of plaintiff proves a request by defendant of plaintiff to do the work, the price of which is sued for, made either on his own account, or for an undisclosed principal, and for the purpose of this case it matters not which, and that, upon such request, the law raises an implied promise by. defendant to pay what the services are reasonably worth.

The judgment is affirmed.

Affirmed.