Action to recover from the defendant, as an undisclosed principal, for labor and material performed and furnished by the plaintiff in decorating and repairing her house, pursuant to an alleged contract made for her by her husband, Joseph M. Dickson.
The complaint alleged, in effect, that at the time the contract was entered into with the husband he was in fact acting as agent for his wife, the defendant, bút he failed to disclose to the plaintiff the fact of such agency, or the fact that she was the real party in interest and owned the house, the decorating and improvement of which was
1. The first group of alleged errors to be considered is to the effect that there was no evidence to support the verdict, because there was no evidence that the husband of the defendant was her agent and acted as such in making the contract in question, and further that there was no evidence that the plaintiff relied upon such supposed agency in making the contract, but, on the contrary, that he dealt with the husband as principal. It is not controverted that the plaintiff, at the time the contract was made, understood that the house he was to decorate and improve belonged to the husband, and that he was dealing with him as principal, and further that he recovered judgment against the alleged agent upon the same claim which is the basis of this action, in ignorance of such alleged agency. It is the contention of the defendant that such judgment is a bar to this action.
The general rule is that, where a simple contract, by parol or writ-^ ing, is made by- an authorized agent without disclosing his principal, and the other contracting party subsequently discovers the real party, he may abandon' his right to look to the agent personally and resort to the principal. Wm. Lindeke Land Co. v. Levy, 76 Minn. 364, 79 N. W. 314. But whether the creditor can proceed against the undiscovered principal, after he has obtained a judgment on his claim ■ against the agent, is a question as to which the adjudged cases are conflicting.
In the case of Kingsley v. Davis, 104 Mass. 178, the creditor, after being fully informed that the party with whom he made the contract
We therefore hold upon principle, and what seems to be the weight of judicial opinion, that: If a person contracts with another, who is in fact an agent of an undisclosed principal, and, after learning all the facts, brings -an action on the contract and recovers judgment against the agent, such judgment will be a bar to an action against the principal. But an unsatisfied judgment against the agent is not a bar to an action against the undiscovered principal when discovered,- if-the plaintiff was ignorant of the facts as to the agency when he prosecuted \his__action_jagainst^the agent. Kingsley v. Davis, supra; Steele v. Potthast, 109 Iowa, 413, 80 N. W. 517; Coleman v. First National, 53 N. Y. 388; Wharton, Ag. § 472; 1 Am. & Eng. Enc. (2d Ed.) 1139; Mechem, Ag. § 699.
The defendant also urges that there was no evidence to sustain the finding of the jury that the contract in question was made by the husband as agent for his wife, the defendant. This question was submitted clearly and carefully to the jury, and the verdict was approved by the learned trial judge. It was not necessary to establish such agency by direct evidence. It may be established by circumstances such as the relation of the parties and their conduct with reference to the subject-matter of the alleged contract. There was evidence in this case tending to show that the defendant was the sole owner of the
'2. The plaintiff, to prove the amount and value of a particular item of the work done under the contract, called-as a witness one of his painters, who testified without objection that he worked one hundred thirty seven hours on the house. On his cross-examination he testified that he did not remember, without reference to the time slips,’-the number of hours that he worked, and that he had recently refreshed his memory and knew the number of hours he had stated to be' correct. There was no motion to strike out the evidence. The deféndant objected to the testimony as not the best evidence. The record does not show that any ruling was made by the court, but it does show that the witness stated that he could produce the time slips the next day, and counsel for the defendant said, “Better produce them Monday, today is Friday,” and the witness said he would do so. The record does not disclose any further reference to the production of the time slips. The defendant here urges that there was no competent evidence to support the verdict as to this item of one hundred thirty seven hours of work. The evidence was received without objection, and no motion made to strike it out. A fact may be established by incompetent evidence,
3. The plaintiff called as a witness in his behalf Joseph M. Dickson. During the course of his examination he was asked if, as agent of the defendant, he employed the plaintiff to make the repairs on her property. Neither the competency of the witness nor the question was objected to, and the witness answered that he did not.» Thereupon counsel for plaintiff interrogated the witness as to his testimony before a referee, and he was asked if he did then testify that he did so employ the plaintiff as agent. This question was objected to, on the ground that the plaintiff could not cross-examine his own witness. The court, however, allowed the examination to proceed, upon plaintiff’s statement that he was surprised by the testimony of the witness, to which ruling the defendant excepted. ■ The witness denied that he so testified, and the plaintiff called the referee, who testified, over the objection of the defendant, that the witness did so testify. These rulings are assigned as error by the defendant.
The record justifies the inference that the plaintiff was surprised by the testimony of the witness. The witness having testified directly the opposite from what the plaintiff had reason to expect he would do, the plaintiff would be seriously prejudiced, unless the unexpected and adverse testimony could be neutralized by showing that the witness made statements to the contrary out of court. The admission of the evidence was discretionary with the trial court, and the discretion was properly exercised. Selover v. Bryant, 54 Minn. 434, 56 N. W. 58, 21 L. R. A. 418, 40 Am. St. 349.
There are no other assignments of error meriting special consideration.
Order affirmed.