145 Mo. App. 578 | Mo. Ct. App. | 1909
(after stating the facts).
The ruling of the court that the fact of agency could not be proved by the testimony of the agent when on the witness stand, when asked concerning his agency, is such patent error as to in itself call for the reversal of the judgment. It is true, that agency cannot be proved by the declarations of the agent to third parties and then putting those third parties on the stand and having them testify as to what the agent told them. Such testimony is excluded, not only as not the best evidence, but ¡as hearsay. That is very far from holding, however, that when the witness is on the stand himself, he cannot testify as to the fact of his agency. He is entirely competent, unless disqualified for some other reason, to testify as to that fact. It is true, that defendant after-wards testified as to what took place between himself and McLain, and this testimony appears to have been admitted without any objection by counsel or by the court, but as we have the declaration from the court that the agent could not prove his agency by his own testimony, we are bound to assume that the court gave the testimony of the defendant no consideration whatever in arriving at the determination of the question of agency. If this had been a trial before a jury, the subsequent admission of the evidence theretofore ruled out, would have done away with the exception made, but as this
But a far more serious question is presented on the record in this case. This is an action to recover the purchase price of goods alleged to have been sold to the defendant, and the statement or petition filed avers a sale to the defendant, a report of that sale to the court and an approval by the court. The testimony of plaintiff himself discloses a fatal departure from the allegations of the petition, inasmuch as it discloses a sale to McLain, a report to the court of the fact of a sale to McLain, and an approval and confirmation by the court of a sale to McLain. He is not sued as agent, nor for deceit in pretending to be agent when in fact he was principal.
In Hall v. Crandall, 29 Cal. 567, the Supreme Court of that state has said: “If an agent in executing a contract, employ terms which, in legal effect, charge himself, he may be sued upon the instrument itself as a contracting party. This is so because by the use of such terms he has made the contract his own. But if the instrument does not contain such terms, or in other words contains language which in legal effect binds the principal only, the agent cannot be sued on the instrument itself for the obvious reason that the contract is not his. If then the contract is not binding upon the principal because the agent had no authority to make it, and is not binding on the agent because it does not contain apt words to charge him personally, it is wholly void.”
In Wright v. Baldwin, 51 Mo. 269, our Supreme Court held that the proper action in a case of this kind, where one falsely represents himself as an agent, is not on the contract itself but against the agent for damages. While it is true that our code has abolished the distinction between the forms of action, and equally true that one can waive the tort and sue in assumpsit, it was long