87 Kan. 176 | Kan. | 1912
The opinion of the court was delivered by
Emma C. Windhorst was engaged in farming, the business being managed by her husband, Fred Windhorst. Miley Hawkins owned 92 head of steers, which were in the possession of A. F. Anderson, who. had authority to sell them. Fred Windhorst looked at the cattle and made an agreement with Anderson for their purchase, giving in part payment a check for $500, to which he signed his wife’s name. Several days later an offer was made to deliver the cattle, but they were refused. Hawkins sued Mrs. Windhorst upon the check, which Anderson had endorsed to him. Two verdicts were set aside upon appeal, upon grounds not now material. (Hawkins v. Windhorst, 77 Kan. 674, 96 Pac. 48; 82 Kan. 522, 108 Pac. 805.) A third trial resulted in a judgment for the plaintiff, from which the defendant appeals.
“Defendant now offers to prove that Fred Windhorst bought the cattle of Anderson with the distinct understanding and statement by Anderson and Fred Windhorst that the said cattle were the property of Anderson and that Windhorst refused to accept the said cattle because they belonged to Hawkins.”
The defendant maintains that if Anderson in conversation with Windhorst said that he owned the cattle, and Windhorst, believing the statement, agreed with Anderson to buy them, Windhorst had a right, upon learning that the cattle actually belonged to Hawkins, for whom Anderson was acting, to refuse to complete the purchase; that under the circumstances the minds of the parties did not meet, and therefore no contract resulted, and there was no consideration for the check.
An undisclosed principal may ordinarily enforce a contract made for his benefit by an agent. (1 A. & E. Encycl. of L. 1168; 2 Ene. L. & P. 1214.)
“The rule is elementary that an undisclosed principal may appear and hold the other party to the contract made with the agent. . . . An undisclosed principal may claim the benefit of a contract of sale of his property by his agent, and may maintain an action thereon, and enforce any remedies which might have been pursued by the agent himself.” (81 Cyc. 1598, 1599.)
This rule proceeds on the theory that it is not a matter of any consequence to one party to the contract whether he is dealing with the other in a personal or in a representative capacity. Whenever for any reason
“If the right of an undisclosed principal to treat and sue upon contracts as his own, though made in the name of his agent, be conceded (and that it must be conceded the decisions affirm with substantial unanimity), then the only exceptions to the rule which ought to prevail should be limited to those contracts in which [the effect of] their assertion as contracts of an undisclosed principal must be to impair their effect in favor of the other contractor, either by giving him something less than, or substantially different from, what he contracted for, or by depriving him of some privilege or defense which he had the right to believe himself entitled to when contracting with the agent, without knowledge of the agency. Subject to these limitations, the principal should be permitted to maintain an action as though he had been named in the contract as a party thereto.” ■ (p. 919.)
It is said that a person has a right to decide for himself with whom he will have business relations, and therefore that he can not become a party to a contract with a particular person without his consent. This is of course true, but the consent need not be express, ■it may be implied from circumstances. And the making of an ordinary business contract, without in some way indicating that the personality of the other party is regarded as material, implies consent that it may be enforced by a third person, if it was made in his behalf. Otherwise the enforcement of a contract by an
“Perhaps if the contract necessarily affirms that the party who is claimed to have been an agent was a principal, or excludes by its terms the idea of his acting as agent, the principal may not recover thereon. It is said that either party to the contract has the right to deal with the person known to him as principal in that capacity only, and if he does so, that another principal can not be substituted, and therefore .if the contract or the attendant circumstances show that this subject was in the minds of the parties,- and that one of them wished to contract, and did contract, with the other as principal only, the latter can not be shown to' have acted as an agent, and therefore his principal can not recover on the contract.” (55 Am. St. Rep. 919.)
In order that one party to a contract may refuse to recognize an undisclosed principal, merely because he does not wish to have business relations with him, he must not only have had the purpose to deal solely with the person with whom his negotiations were had, but he must also have made his purpose in that regard manifest. In the course of a discussion of the subject in Huff cut on Agency the author says:
“Subject to the exceptions and qualifications hereafter enumerated, an undisclosed principal may bring an action in his own name upon contracts made by his agent in his behalf, although the third party supposed" that he was dealing with the agent as principal. . . . Where the third person has clearly expressed his intention to deal with the agent as principal, . . . the undisclosed principal can not claim the benefits of the contract.” (Huffcut on Agency, 2d ed., §§ 129, 132.)
The decisions chiefly relied upon by the appellant are consistent with these conclusions, although in some of the opinions broader language may have been used than the facts required. In Winchester & Another v. Howard, 97 Mass. 303, 93 Am. Dec. 93, the evidence offered was held sufficient' to release from his engagement one who had agreed to buy a pair of oxen, upon his discovering that they belonged to persons with whom for years he had had no dealings, and with whom he would .not knowingly have entered into any contract. But the evidence included a showing that in answer to his inquiries the agent of the owners, with whom he dealt, said that they (the owners) had no mortgage on the oxen, and that there was no claim upon them excepting the claim which he (the agent) had. In Barker v. Keown, 67 Ill. App. 433, the auctioneer who was conducting for an administrator a public sale of the personal property of the decedent, placed the horse of another person among those belonging to the estate and sold it as though it were one of them. It was held that the bidder on discovering the facts was justified in refusing to accept the horse. Thomas v. Kerr, 66 Ky. 619, 96 Am. Dec. 262, is an almost exactly similar case. A sufficient reason for these decisions would be that the
Complaint is also made of a refusal to give an-instruction reading as follows:
“You are instructed that if Fred Windhorst stated in the presence of Anderson that this check was to be held till return came from the cattle and that then Anderson agreed to such settlement, such fact may be considered as tending to show that the transaction was a personal one with Fred Windhorst, and that.he (Anderson) did not rely on a recovery from defendant.”
If an arrangement to hold the check until returns were received from the cattle indicated that Anderson
■ A witness was permitted over objection to testify that he had sold other cattle to Fred Windhorst, but -while the evidence may not have been material it does not seem to have been prejudicial.
The judgment is affirmed.