87 Ark. 374 | Ark. | 1908
(after stating the facts). First. The judgment is correct. While Bain purchased the material sued for- in his own name, and without disclosing his principal, and while credit was extended to him as the supposed principal, it was nevertheless true that he was the agent of appellant Construction Company, and was clothed with the authority to buy the material to be used in the construction of the building. The proof shows that appellee did not know that Bain was the agent of the construction company when the credit was extended to him, and that as soon as this agency was discovered appellee elected to proceed againt the Construction Company, instead of its agent Bain. The doctrine is well settled that where a party deals with an agent without any disclosure of the agency, and without any knowledge thereof, he may elect to treat the after-discovered principal as the one with whom he contracted, and hold him alone responsible for the debt, provided the election is made wirhin a reasonable time after the discovery. Benjamin v. Birmingham, 50 Ark. 433. See cases cited in appellee’s brief.
The agent, Bain, under the proof, was certainly clothed with the apparent authority to make the purchase from appellee. Jacoway v. Ins. Co., 49 Ark. 323. This being true, appellant Construction Company was liable, notwithstanding any secret instructions to Bain to purchase the material from another. See cases cited in appellant’s brief in Jacoway v. Insurance Co., supra.
These principles rule this case and establish the correctness of the judgment upon the uncontroverted proof, notwithstanding ’the rulings of the court upon the prayers for instructions may not have been technically correct.
Second. Appellant Ward was liable under section 859 of Kirby’s Digest making the debt as to him, under the facts, a statutory liability. See Nebraska Nat. Bank v. Walsh, 68 Ark. 433.
The objection, raised here for the first time, that the account filed contained no statement showing ‘his liability under the above statute cannot avail. There were no written pleadings, and none required. The evidence taken without objection at the trial showed his liability under the statute, and warranted the judgment against him.
Affirm.
