24 Wash. 387 | Wash. | 1901
The opinion of the court was delivered by
The complaint in this case alleges the corporate existence of the Washington Water Power Company, the defendant, with power to purchase stock in street railway corporations. That prior to the 31st day of February, 1892, the plaintiff, together with certain other parties, was the owner of stock in a certain corporation known as the Eoss Park Street Eailway Company. That on the. 30th day of May, 1890, the Eoss Park Street Eailway Company entered .into a contract in writing with the plaintiff and certain other parties, wherein it was recited that at the time of the incorporation of the Eoss Park Street Eailway Company it had been understood and agreed between the stockholders thereof and the parties of the second part that the object and purpose of said corporation was to construct and operate an electric street railroad over certain streets, named in the complaint, in the city of Spokane.' That' the agreement recited that the parties of the second part subscribed and paid for their shares in the capital stock of the corporation under such understanding and agreement and for such purpose, and not otherwise, and, for the purpose of carrying out said agreement, at a meeting of the stockholders of the said corporation duly held on the 27th day of May, 1890, a resolution had beefa. duly passed directing the trustees of said corporation to cause said road to be constructed, to enter into a contract with the parties of the second part binding said corporation to construct said road, etc. That the said contract was well known to the defendants at the time of making the subsequent contract upon which this action is based. That the subsequent contract was
Error is assigned in overruling appellant’s demurrer to the complaint. It is contended that the complaint nowhere alleges that Norman was acting for an undisclosed principal. It is true that the contract set forth in paragraph 4 of the complaint shows on its face that Norman, the party of the first part, was acting as principal in the transaction; hut paragraph 6 makes the plain statement that said contract.was executed by defendant W. S. Norman for and on behalf of defendant the Washington Water Power Company. It would seem that this was a plain statement that Norman was acting as an agent for the principal, who was not disclosed by the agreement set forth in paragraph 4. Paragraph 6 continues to the effect, that the undertakings and agreements therein contained to he performed and done by the said Norman were in fact to he performed and done by the defendant, the Washington Water Power Company; that the stock mentioned in the agreement was afterwards delivered to and received by the said Washington Water Power Company, and that it was then held and owned by said company; that the water power company had repeatedly recognized the contract as binding upon it, and had repeatedly promised to carry out the terms of the contract. We hardly
“But although parol evidence may not be admissible to release the agent, it may be made use of to charge the principal. Thus the principal, as will be seen hereafter, may be charged as such by parol evidence upon a simple contract made by his agent, even though the contract gives no indication on its face of an intention to charge any other person than the signer. And this doctrine applies as well to those contracts which are required to be in writing as to those to whose validity a writing is not essential. This rule is not obnoxious to the principle which forbids the contradiction of Written, instruments by parol testimony, for the effect is not to show that the person appearing to be bound is not bound, but to show that some other person is bound also.”
“When the agreement is executed by an agent in his own name, he appearing to be the. contracting party, the requisite as to parties is complied with. The principal may maintain a suit and enforce the contract, and it is immaterial whether the principal was actually known during the transactions, or whether the other party supposed that he was dealing with the agent personally, entirely on his own behalf. Under the same circumstances, it is now the rule that a suit may be maintained, and the contract enforced against the principal, even though his name nowhere appears on the face of the writing, and even though he was undisclosed and unknown to the other party at the time of entering into the agreement, provided, of course, it was actually made on his behalf.”
This rule, indeed, seems to be so well established that the citation of further authority is not necessary.
The next contention is that there is no allegation that the alleged damages have not been paid, but we think the complaint sufficiently indicates that the damages have not been paid.
It is next insisted that an alleged agent and alleged principal cannot be sued together, and that, therefore, there is a misjoinder of causes of action. But, whatever the weight of authority may be on this proposition, a demurrer was filed in this case, and in response to that demurrer the defendant Uorman was dismissed out of the case, and the cause proceeded against the water power company alone. This action of the court was acquiesced in by the respondent, and the effect is the same as though the respondent had voluntarily dismissed the defendant Borman, and no injury has.thereby been done to the defendant the water power company in that regard.
It is also insisted that the complaint failed to allege anything showing measure of damages. But we think the
It is also alleged that there is a defect of parties plaintiff in that the assignment of Kaufman to respondent, Belt, ivas not good without joinder with his wife therein; and Parke v. Seattle, 8 Wash. 78 (35 Pac. 594), and Lownsdale v. Gray’s Harbor Boom Co., 21 Wash. 542 (58 Pac. 663), are cited to sustain this contention. But we do not think the cases cited reach that far. This action will in no wise imperil Mrs. Kaufman’s right to her community interest in the land, if she has any. The action is upon the personal contract made by Kaufman, and the value of the land is incidental. The right of Kaufman to maintain the action would fall within the right which the statute gives him to manage and control the community property. This also disposes of the objection that the court erred in overruling the appellant’s objection to the introduction of any evidence at the commencement of the trial.
It is insisted that the court erred in admitting in evidence the instrument sued on, for the folloAving reasons: (1) Because it is not alleged in the complaint that it was ever delivered; (2) because plaintiff did not prove that it was ever delivered; (3) because the minutes of the meeting of the board of trustees show conclusively that appellant never agreed to become bound by it; (4) because the liability of appellant was fixed by resolution; (5) because Borman had no authority to bind appellant; (6) because appellant never acted under it and never ratified it; (7) because respondent elected to and did accept Borman as principal and appellant as surety; (8) because the instrument sued on, if ever delivered, Avas surrendered and
But, in addition to the outside authorities which are to the effect that a party will not be estopped from pursuing his proper and legal remedy because he has made a mistake in attempting to enforce a remedy which he did not have, this court has decided the question squarely in the ease of Magnus v. Woolery, 14 Wash. 43 (44 Pac. 130), where it was held that the fact that the obligee in a redelivery bond elects to sue thereon in the first instance will not preclude a subsequent action by him against the sheriff for damages, when it developes that the bond which the sheriff had taken and turned over to him was not in fact a genuine one. On the question of interest, see Bellingham Bay, etc., R. R. Co. v. Strand, 14 Wash. 144 (44 Pac. 140). We think it sufficiently appears from the record that the deeds which were given by Belt in this case to
Many objections are made also to the instructions in this case, which are too lengthy to notice specially, and many lengthy instructions were presented. Error is alleged in the giving of nearly all of the instructions and in the refusing to give the instructions asked by the appellant. The most of the errors are based upon the insufficiency of the evidence to justify the instructions. We have examined in detail the extended and earnest briefs, both in chief and in reply, filed by the appellant, and the authorities there cited. We have also read the voluminous testimony in this case. Want of time prevents us from answering in detail all the arguments presented therein, and from reviewing specially the authorities or the testimony in detail. The record convinces us that there was not only sufficient testimony to sustain the instructions given by the court and the verdict of the jury, but it is convincing to us that the appellant, the Washington Water Power Company, was the real party in interest to the contract set forth in the complaint; and, there having been no prejudicial error committed by the court in giving or refusing instructions, or in the admission or denial of testimony, and there having been sufficient testimony to sustain the verdict so far as the amount of the damages is concerned, the judgment will be affirmed.
Reavis, C. J., and Fullerton and Anders., JJ., concur.