This сase was heard at the Fall Term 1962 at which time the question of nonsuit was decided adversely to the defendant.
Howell v. Smith,
These rules are well established in the law of agency:
An agent who makes a contract for an undisclosed principal is personally liable as a party to it unless the other party had actual knowl
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edge of the agency and of the principal’s identity.
Walston v. Whitley & Co.,
The liability of the agent is not exclusive. When the principal becomes known, the other party to the contract may elect whether he will resort to him or to the agent with whom he dealt unless the contract is under seal, a negotiable 'instrument, or expressly excludes him.
Hardware Co. v. Banking Co.,
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The right of the third party to sue the agent is not impaired by a discovery of the identity of the principal after the contract was made. Tiffany on Agency § 99. The disclosure of the principal comes too late to discharge the agent after the third party has extended credit, performed services, or entered upon the performance of an indivisible contract. To protect himself, the agent must disclose the fact that he is acting for a designated principal in time for the third party to determine beforehand whether he will accept the responsibility of the principal in the transaction. Knowledge of the identity of a principal acquired after the performance of the contract, cannot release the obligated agent to whom credit was extended and substitute a stranger to the transaction.
Whiting v. Saunders,
The trial court adequately explained these rules of law as they apply to the instant case. Whether the agent or the principal was the contracting party was a question for the jury.
Howell v. Smith, supra.
Its verdict has established that аt the time defendant made arrangements with plaintiff to furnish oil to the Atlantic Block Company he did not disclose that he was acting as the agent of a corporation. Therefore, he was the original сontracting party and outside the usual rule that an officer of a corporation will not be individually bound when contracting within the scope of his employment as an agent of the corporation.
Potter v. Chaney,
Ky.,
Hоwever, the agreement in this case was not a single indivisible contract. Under it, upon order, plaintiff delivered oil to the Block Company from April 5, 1957 to June 17, 1960. If a third party to a contract involving an undisclosed рrincipal discovers the agency and the identity of the principal while a continuing, divisible contract for the furnishing of goods or supplies is still executory, he then has the option to deal either with the agеnt or the principal with respect to the future performance of the contract. Ordinarily, the agent who made the original purchase is not liable if the third party continues to deliver goods after acquiring knowledge of the principal’s identity unless he has agreed to be personally liable.
Brackenridge v. Claridge,
The appellant’s position is this: Conceding arguendo that plaintiff originally dealt with the defendant as the agent of an undisclosed principal in April 1957, by June 1959 he had acquired such information that he must have known that the defendant was the agent of a corporation and thereafter the corporation was solely liable. The defendant assigns as error that the judge (1) failеd to explain “what constitutes *261 knowledge by a third person of the identity of the principal,” and (2) failed “to instruct the jury that plaintiff must show that the identity of the defendant’s principal remained undisclosed by defendant and was unknown to the plaintiff at the time of the last or unpaid items of the alleged account.”
There is no evidence whatever that plaintiff knew that Mr. Mar-low’s business, the Atlantic Building Block Company, was a corрoration. After April 1957 the invoices which Maready had printed bore the caption “Atlantic Building Block Company.” It is a fair inference that for each of the five purchases for which plaintiff received a statement bearing the abbreviation “Inc.,” he received an invoice without it. Payments received by plaintiff on the account in question were made by checks which gave no clue that a corporation was paying the bill. Below the printed name “Atlantic Block Company” appeared the individual signature of either the defendant or the manager, Maready. It is noted that Maready testified that he received his salary from the defendant personally. The sign at the site of the business identified it as “Atlantic Building Block Company,” and fifty or sixty highway signs throughout the county proclaimed the name of the enterprise as “Atlаntic Block Company.”
To establish knowledge of agency on the part of the plaintiff, defendant must rely upon the five statements bearing the imprint, “Atlantic Building Block Co., Inc.” which were sent when plaintiff purchased materials from the Block Company. Did the receipt of those statements constitute such evidence of knowledge as to require an instruction that the burden was on the plaintiff to satisfy the jury that the identity of dеfendant’s principal remained undisclosed to him thereafter?
In Saco Dairy Co. v. Norton, supra, the defendant was manager of his mother’s hotel, Breakwater Court. As a result of interviews with the defendant R. T. Norton in 1941, plaintiff sold a substantial amount of dairy products for use in the hotel. At no time did they discuss who owned the hotel. All bills were charged to the Breakwater Court and the total bill for 1941 was paid by a check signed “Kate F. Norton by R. T. Norton, Atty.” The bills for 1942 were not paid and were the subject of the suit. The sole question was whether the agency of the defendant was disclosed to the plaintiff by the check or the trade name, or both. The trial court held that it was not and the Supreme Judicial Court affirmed. With reference to the check, the court said:
“This was not, as a matter of law, a disclosure of the agency, nor was it evidence of such probative force that the Justiсe was bound to consider it conclusive of itself or in connection with other facts *262 submitted. ... It might well be that the check was received in such routine manner that it had little or no significance on the question of knowledge of the plaintiff.”
In
Phillips v. Hine,
In
McManor Plantation v. Rouse,
La.,
Likewise, under the circumstances in this case, we do n'ot think that the receipt of the five statements, even conceding they were mailed in envelopes bearing the name “Atlantic Building Block Co., Inc.,” were sufficient to establish actual knowledge by plaintiff that he was dealing with a corporation. At the time the contract was made in Aрril 1957, the defendant dealt with plaintiff’s salesman and manager as an individual. He announced that he would operate under the name of Atlantic Block Company and not under the name by which Marlow had done business. When the first delivery of oil was made the defendant receipted for it as an individual. Thereafter every check sent as payment on account was signed by the defendant or his employee Mareаdy individually. In view of the direct personal dealing by the defendant with the plaintiff, we do not think it can be inferred that plaintiff acquired actual knowledge that defendant represented a corporation frоm the incidental receipt of the five statements under all the circumstances detailed herein. Defendant had it in his power to relieve himself of all personal liability by contracting in the corporation’s name. This he did not do, and plaintiff relied upon his credit. Therefore the hardship of the loss should not be imposed upon the plaintiff.
Under the evidence in this case, the omissions complained of were not error. The judge’s charge sufficiently applied the law to the case.
*263 In the trial below we find
No error.