133 P. 376 | Wyo. | 1913
The defendant in error was plaintiff in the court below and brought this action against J. J. Crable, E. I. Crable and J. J. Crable & Son, plaintiffs in error here, to recover a sum of money alleged to be due as rent for certain teams delivered to J. J. Crable & Son by the plaintiff pursuant to a written contract set out in the petition as follows:
“This agreement made this 5th day of September, 1910, between Pat O’Connor, of Thermopolis, Wyoming, party of the first part, and E. I. Crable of Thermopolis, Wyoming, party of the second part.
“Witnesseth, that the said party of the first part, for and in consideration of the agreements hereinafter contained, to be kept and performed by the party of the second part, does hereby lease unto the party of the second part eleven two-horse teams composed of horses and mules, for and during three months from date hereof.
“And the party of the second part, for and in consideration of the agreements herein contained by the party of the first part, does hereby agree that he will pay the said party of the first part for the use of said property the sum °f $330 per month, same being $30.00 per team, that he will keep the said mules and horses well fed and well cared for and in a first-class and healthy condition, and that he will exercise every care and diligence in the proper care of the same; that he will pay the value of all animals lost, destroyed or injured in any way by reason of his negligence or the negligence of his employees, and that at the termination of this lease he will re-deliver the said property to the party of the first part at Thermopolis, Wyoming, in as good condition as when received by him.
“It is further understood and agreed that the said rental shall be due and payable by the second party to the first party on the 25th day of each month hereafter.
*465 “In witness whereof the parties hereto have hereunto set their hands and seals this 5th day of September, .1910.
“Pat O’Connor.
“E. I. Crable.”
The petition alleges that J. J. Crable & Son is a partnership composed of J. J. Crable and E. I. Crable; that the defendant E. I. Crable, while acting as a member of said firm, entered into the said contract with the plaintiff for and in behalf, and for the use and benefit, of said partnership ; that pursuant to the contract the plaintiff delivered to said firm of J. J. Crable & Son eleven teams, “which were thereupon taken to a certain railroad grade between Scribe ner and Fromberg, Montana, and there used for a period of about three months by said J. J. Crable & Son in working upon their contract in the construction of a certain grade between the places above mentioned.” That subsequent to the execution of the contract it was adopted and ratified and the proceeds and benefits thereof were taken and enjoyed by said firm. The petition contains an itemized statement of the amount claimed to be due for the rental of said teams, showing that amount to be $1,136.25, and also a statement of additional items amounting to $79.35, including charges for rent of three carts, and certain property claimed in the testimony of the plaintiff to have been delivered with the teams and not returned, making a total alleged indebtedness of $1,215.60, on which a credit of $212.75 is allowed by the petition for hay furnished the teams, explained in plaintiff’s testimony to be for hay furnished after defendants had ceased to use the teams, the net amount alleged to be due, and for which judgment is prayed, being $1,002.85.
An answer was filed by E. I. Crable admitting the execution of the written contract and that he is indebted to the plaintiff under the same in the sum of $990, and denying each and every other material allegation in the petition. He alleged by way of set-off that the plaintiff was indebted to him in the sum of $80.30 for the care and feed of the teams
Parol evidence was admitted, over the objection of the defendants, to sustain the averments of the. petition to the effect that in making the contract with the plaintiff for the lease of the teams E. I. Crable acted as a member of and for the firm of J. J. Crable & Son, and that it was in fact a partnership contract. It is contended that this ruling was error for the reason that it violated the principle that parol evidence is inadmissible to vary or contradict the terms of a written instrument. It is unnecessary to rehearse all the
“Mr. O’Connor and Mr. E. I. Crable met me one morning in front of my office, and Mr. O’Connor said they wanted me to draw up a little memorandum for them, and the conversation was to this effect: That Mr. O’Connor wished to rent certain horses and mules to the firm of Crable & Son —I cannot state the initials or the name of the other Crable. * * * I informed them that the best way for them to execute this contract was to have all the parties involved sign the contract; that is, all the members of the partnership. They explained to me there was a partnership. * * * That the other member of the firm was absent and*468 could not sign at that time, that they wanted this deal closed at once, or they wanted it fixed up, so I understood. I told them if it suited them that way it was all right with me, and therefore I drew the contract.” He further testified that he thought it was not drawn on that day, but probably the next day, and that he drew it in accordance with the conversation the parties had with him.
It was shown that the teams were taken to the railroad grade referred to and that some of them were used on the firm’s construction contract, with the knowledge of J. J. Crable, who also seems to have known of the contract with plaintiff, and that others were hired out to brothers of E. I. Crable, mostly for use on other portions of the grade. E. I. Crable, maintaining that he alone made the contract with plaintiff, testified that he rented the teams which he did not use to his brothers. It may be said here that if the teams were rented by him for the firm, his act in subletting them may also have been for the firm. It is not disputed that as to the construction work in which E. I. Crable was then interested, a partnership existed between him and his father, J. J. Crable, under the firm name and style of J. J. Crable & Son. Indeed, they testified that the partnership continued as to that work, but that prior to the making of this contract with plaintiff the partnership had been dissolved, so far as the partnership property was concerned, E. I. Crable having surrendered his interest in that property to his father. There was no proof of any other work or business conducted by either J. J. Crable or E. I. Crable during the time they .worked on this grade, or the time for which the teams in question were rented or used. Counsel for defendants contend not only that plaintiff’s evidence on the subject of the parties to the contract was inadmissible, but that “the effect of this testimony is not to show that Crable acted as agent for the firm when he' signed, but to show that the parties at the time of ordering the contract drawn intended to have it run to the partnership,” and that “what the parties did, however, was to make a contract run
The law is well séttled, both in England and this country, that it is competent to show by parol evidence that a party who is named in and has signed a contract as one of the parties thereto was an agent for another, and acted as such agent in making the contract, so as to give the benefit of the contract to, and charge with liability, the unnamed principal; and this is so, whether the unnamed principal was disclosed or known to the other party to the contract at the time it was made or not, although there is an occasional opinion to the contrary where the unnamed principal was known to the other party at the time. (Higgins v. Senior, 8 M. & W., 834; Jones on Ev., (2nd Ed.) Sec. 452; 9 Ency. of Ev., 404-405; Story on Agency, (7th Ed.) Sec. 270; 4 Wigmore on Ev., Sec. 2438; Curran v. Holland, 141 Cal. 437, 75 Pac. 46; Briggs v. Partridge, 64 N. Y., 357, 21 Am. Rep. 617; Byington v. Simpson, 134 Mass. 169, 45 Am. Rep. 314.) It is said in Story on Agency: “There is no doubt that parol evidence is admissible, on behalf of one of the contracting parties, to show that the other was an agent only in the sale, although contracting in his own name, so as to fix the real principal. It has been well observed that, in cases of this sort, the liability of the principal depends upon the act done; and not merely upon the form in which it is executed. If the agent is clothed with the proper authority, his acts bind the principal, although executed in his own name. The only difference is that, where the agent contracts in his own name, he adds
In the section in Wigmore on Evidence, above cited, the general state of the law on the subject is said to be sufficiently outlined in the following passage quoted from the decision of Wolverton, J., in Barbre v. Goodale, 28 Or., 465, 38 Pac. 67, 43 Pac. 378: “The question is here presented whether it is competent to show by parol testimony that a contract executed by and in the name of an agent is the contract of the principal, where the principal was knowri to the other contracting party at' the date of its execution. There are two opinions touching the question, ' among American authorities — the one affirming, arid the other denying ; but the case is one of first impression here, and we feel contsrained to adopt the rule which may seem the more compatible with the promotion of justice, and the execution of honest and candid transactions between 'individuals. The English authorities are agreed that parol evidence is admissible to show that a written contract executed in the name of an agent is the contract of the principal, whether he 'was known or unknown; and the American authorities are a unit, so far as'the rule is applied to an unknown principal, but disagree where he was known at the time the contract was executed or entered into by the parties. All the authorities, both English and American, concur in holding that, as applied to such contracts executed when the principal was unknown, parol evidence which shows that the agent who made the contract in his own name was acting for the' principal does not contradict the writing, but simply explains the transaction'; 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. And those authorities which deny the application of the rule where the principal Was known do not'assert or maintain that such parol testimony tends to vary or contradict the written contract, but find support upon the doctrine of estoppel; it being maintained that a party thus dealing with an agent of a known
Where it was known at the time that a party contracted as the agent of another, the rule was applied in Byington v. Simpson, supra. We quote from the opinion of the court delivered by Holmes, J., for it is particularly applicable to the facts in this case, and answers some of the arguments made here: '“The argument is, that, inasmuch as the plaintiffs knew of the existence of a principal. before the contract was made, and then were contented to' accept a-written agreement which on its face bound the'agent, they must be taken to have dealt with, and to have given credit to the agent alone; just as, upon a subsequent discovery of the undisclosed principal, they might have determined their right to charge him by a sufficient election to rely upon the credit of the agent. We are of the opinion that the plaintiff’s knowledge does not make their case any weaker than it would have been without it. Whatever the' original merits of the rule, that a'party not mentioned in a simple contract in writing may be charged as a principal upon oral evidence, even where the writing gives no.indication of an intent to
That the rule applies to a contract made and executed by one partner, when acting for the firm and within the scope of the partnership business, is equally well settled. (30 Cyc. 485; 9 Ency. of Ev., 473; Brewing Co. v. Hawke, 24 Utah, 199, 66 Pac. 1058; Dreyfus & Co. v. Union Nat. Bank, 164
As above indicated, we think the evidence sufficient to justify the trial court in finding that E. I. Crable, in making the contract for the use of the teams, was acting for the firm of which he was a member, that it was a partnership contract, and created a firm obligation. The amount of the judgment indicates that the plaintiff was only allowed the rent of the teams, with interest, after deducting the credit given for the hay.
The only other question in the case relates to the attachment proceedings. As grounds for attachment it was .stated in the affidavit “that the defendants are about to remove their property out of the jurisdiction of the court, with intent to defraud their creditors; that defendants are about to dis
E. I. Crable and J. J. Crable filed separate motions to quash the writ.of attachment, supported by their respective affidavits, denying the truth of the grounds mentioned in the affidavit for attachment, except the non-residence of J. J. Crable. Ajs to that ground it was moved that the allegation of non-residence be stricken from the affidavit as immaterial. It would certainly be an unusual proceeding to strike from a party’s affidavit any matter therein contained. An entire affidavit might, perhaps, be stricken from the files, good and sufficient reasons appearing therefor, and it is proper to move for the discharge of an attachment on the ground that the affidavit is insufficient. But we do not understand it to be proper to strike out the statements contained in the affidavit, or any of them, for the reason that they are immaterial or disclose no ground for attachment. It is probable, however, that the question was presented upon the motions to discharge the attachment, whether the non-residence of one of the partners, the other being a resident, constituted a ground for. attachment of the property of the partnership, or the individual property ,of the non-resident partner. Counsel for plaintiffs in error state in their brief that the question was presented.
The evidence shows that J. J. Crable was a non-resident of the state, and it is not contended that the evidence sustains either of the other alleged grounds for attachment. It is contended for defendants, plaintiffs in error here, that the non-residence of J. J. Crable was not a sufficient ground for attaching either his individual property or the property of the partnership, since he was only liable, if at all, as a member of the partnership. We think it unnecessary to decide that question, for it appears that after the judgment was rendered an order was entered upon the application of the defendants, J. J. Crable & Son and J. J. Crable, that upon
It would not be a forthcoming bond provided for in Section 4855 Compiled Statutes. That section requires the sheriff to deliver the property attached to the person from whose possession it was taken, upon his executing, with sufficient surety, of an undertaking to the plaintiff, to the effect that the parties to the same are bound in double the appraised value of the property, that the property or its appraised value in money shall be forthcoming to answer the judgment of the court in the action. The statute relating to stay of execution in case of appeal provides that no proceeding to reverse, vacate or modify a judgment of the District Court shall operate to stay execution until the party against whom the judgment was made shall file a written undertaking with sureties to be approved by the court, or judge, or the clerk of the court; that when the judgment directs the payment of money, the undertaking shall be in such sum as fixed by the court or judge to the effect that the plaintiff in error will pay the condemnation money and costs, if the judgment be affirmed in whole or in part, or if the proceedings in error be dismissed. (Comp. Stat., Sec. 5116.) And it is further provided that such undertaking shall operate as a stay of execution for the period of ninety days from the date it is filed in the clerk’s office, whether any proceedings to reverse,
For the reasons stated, the judgment will be affirmed.