Myers-Leiber Sign Co. v. Weirich
410 P.2d 491
Ariz. Ct. App.
1966
Check Treatment

*1 534 record, transcript present of whether at

mаtter he was have searched the We night proceedings service station that and Count II re- and find no re- of evidence and robbery lated whether he committed error. versible testimony framed itself. As related to Affirmed. robbеry at issue main facts in the trial. CAMERON, STEVENS, J., J.,C. “It is generally held that one’s ac- concurring.

quittal upon a prosecution criminal is prosecution subsequent no bar to his trial,

perjury former committed at the merely testimony

where his relates matters, falsity

collateral its is necessarily inconsistent with There innocence the former crime. is, however, in the cases some conflict Inc., CO., an Ari- MYERS-LEIBER SIGN acquittal is a as to whether a former corporation, Appellant, zona prosecution bar to the accused for v. perjury trial, in the fоrmer where WEIRICH, dba Northern-Aire W. L. testimony facts at relates the main Club, Appellee. there, his conviction of issue No. 1 103. CA-CIV perjury import a con- necessarily would Appeals of Arizona. Court guilty tradiction of the of not verdiсt 27, 1966. Jan. weight charge; of the former but the Rebearing 18, authority Feb. 1966. supports rule that Denied any acquittal former no bar 15, 1966. Denied March Review pros- perjury former committed on the p. Perjury 53, 41 ecution.” § Am.Jur. weight of great find au We

thority supports the former rules that

аcquittal committed any perjury is no bar to prosecution former and that this is

on the Page follow.

a sound rule Arizona to (1961); ‍‌‌​‌‌‌‌​​‌​‌‌​​​​‌​‌‌‌‌​‌​‌‌‌‌​‌​‌​‌​​‌​‌​​​‌​‌‌‍State, Fla.App., 304 130 So.2d

v. 688, Cal.App.2d

People DiGiacomo, v. 193 ; Cal.Rptr. v. Nieren (1961)

14 574 State ; berg, (N.D.) (1956) 80 State 104 N.W.2d ; Leonard, 126, (1952) 236 1

v. 72 S.E.2d N.C. Slayton Commonwealth, v. 185 Va. 38 ; Hоusman, People 44 (1946) 485 v.

S.E.2d ; People Cal.App.2d (1941) 944 112 P.2d Niles, 252, 37 A.L.R. 300 Ill. N.E. 26, p. 492; ; Perjury (1921) C.J.S. compare Adams v. 1290. But

37 A.L.R.

United 287 F.2d States, C.A. is a sound this ‍‌‌​‌‌‌‌​​‌​‌‌​​​​‌​‌‌‌‌​‌​‌‌‌‌​‌​‌​‌​​‌​‌​​​‌​‌‌‍caution person sentence, long as if the

rule so convicted, the crime of confined crime for on the

perjury and based find acquitted. We person

which the case. instant

no such abuse *2 Linsenmeyer and Frank E. Dick-

Otto H. Phoenix, ey, Jr., appellant. for Feinstein, Prade, Paul W. La Allen L. Phoenix, appellee. for

STEVENS, Judge. Chief brought against L. W. action Weirich, Lodge and dba Northern-Aire Country Club, an amount due on contract for the lease and maintenance painted advertising displays for outdoor Country Club. Northern-Aire in which he de- Weirich filed answer nied individual on the contract alleged that he such as an officer of corporation, doing as which was business Club. The tried to the сourt and re- action was judgment sulted in a for the defendant. presented by plain- Evidence was both the tiff and the defendant. At the close of plaintiff’s case, the defendant moved judgment The which motion was denied. advertising was evidence indicated that the displayed using to be the trade name. advertising solicited on behalf of the plaintiff by a salesman and the contract advertising prepared by plaintiff’s manager. credit The evidence еxchange reflected absence of the classify information which as we credit information salesman between the manager. and the credit recognize that an who executes a contract under the tradе or corporation fictitious name of a dis tinguished from the true name of the cor porate principal, proof has the burden of establishing the true situation. The minute entries reflect that after the advisement, ruling case had been under following not, they presumed of the court state- do it contains must that they ment : intend to be liable.” Further, “The court finds has not plaintiff protect order prove by liability, its sustained burden to it is essential *3 preponderance person that principal of evidence the disclosed to the third individually being the defendant at the Weirich was the time transaction is conduct- obligation question.” Chaney, (Ky. liable for the in ed. Potter v. 44 S.W.2d 290 1956). The fact that the discloses finding is the fore- consistent with identity principal the of his after the con- going principle in that the trial court found tract executed not relieve him from will his burden that the defendant had carried liability. McNeill. proof plaintiff of which the had not suc- cessfully rebutted. Whether or not the fact of the agency principal and the name of the were appealed contending Plaintiff Weirich third-party disclosed or known to the so as signеd the contract for a fictitious as protect liability personal to the from corporate entity or undisclosed and was essentially question on the transaction is a individually therefore on the contract. liable depends upon of fact which the circum contends that Northern-Aire surrounding particular stances the transac Country Lodge and the trade or Club was 370, Dally, tion. Matsko v. 49 Wash.2d Develop- assumed named of Northern-Aire 301 P.2d 1074 Here thеre (1956). appellant ment and knew this ample evidence trial judge from which the when it entered agreement. into the appellant apprised could find of the agency fact of and that he had Weirich’s nego In ordеr who individually undertaken the contractual principal a contract in tiates behalf of his obligation. Appellant’s salesman and personal liability disclose avoid he must manager they credit both testified knew identity his alsо the but financially only person Weirich was not the Appel, principal. McNeill v. 197 A.2d Lodge in interested Iowa, (D.C.Ct.App.1964); 152 Alsco Inc. 837, Country Jackson, Club. v. Iowa 118 565 254 N.W.2d ‍‌‌​‌‌‌‌​​‌​‌‌​​​​‌​‌‌‌‌​‌​‌‌‌‌​‌​‌​‌​​‌​‌​​​‌​‌‌‍(1962). agent making The fact that the question is whether there principal, the сontract instead of principal’s the disclosure of was a sufficient disclosing identity the of his uses identity was made. at the time the contract principal the tradename under which testimony as in the was a conflict There transacts his is not of itself business appellant Northern to whether knew principal sufficient identification Country was the Club Aire liability. protect of Northern-Aire tradename Iowa, Inc.; Dairy v. Nor Alsco Saco Co. testimony was cоn Company. While the 204, ton, (1944). Me. 35 See 140 A.2d 857 from which the flicting there is evidence Ann.: 150 A.L.R. 1303. It is not the third ap reasonably find that could court trial persons duty identity seek out the knowledge of the existence pellant had rather, principal; duty disclose the prior at the time the corporation to and identity agent. of the is on the executed and which evidence contract Graf, 122, 358 Stevens v. Mich. 99 N.W.2d support findings of trial Am.Jur.2d, (1959). 356 As in 3 stated function to court’s It was the trial cоurt. Agency, 317: testimony. disputes in all determine determination interfere such rule of will not hardship is no in this

“There evidence any reasonable against not dis- there agents do when who judgment. Ganz always support the lower court’s prinсipals; they close their Virdee, Ariz.App. 400 P.2d 862 1 power them- v. it in their to relieve have Schmeck, Ariz. ; 95 (1965) Mahurin v. liability, from such and when selves Country Lodge and Kings- Kingsbery “Northern-Aire (1964); P.2d 576 Club, .” By W. L. Weirich (1963). bery, P.2d 893 93 Ariz. /s/ Club the trial court Appellant contends name, test- therе was is a fictitious failed error when it committed reversible a trade-name gave imony to the effect that it was findings it to make of fact when Development Company, defendant, citing Kazal v. of Northern-Aire judgment for the cоrporation. in his Defendant Weirich Kazal, Ariz. defense, answer, claimed an affirmative Rules of Civil Proce- Rule of the 52(a) on be- for and that he the contract dure, part: 16 A.R.S. states Development Com- half of Northern-Aire facts “In all tried actions pany, corporation was an of which he *4 advisory jury an without a or with agent. authorized requested court, jury, the before if affirmatively, prove, The burden to trial, specially and shall find the facts fully relаtionship principal-agent was the separately state of law its conclusions upon completely and is the one * * disclosed (Emphasis sup- thereon Rume- asserting defense. Barrett v. such plied.) liote, 1964). (Iowa 126 N.W.2d 322 request present In the case there was no general otherwise The rule is unless findings of law. of fact and conclusions agreed, person purporting to make a con Supreme by As stated the Arizona Court partially disclosеd tract with another for a Zocher, Lenslite Co. v. 95 Ariz. contract, principal, party the is a to (1964) P.2d 421 : complete agency is the disclosure of an judge required “A trial is not find to purposes relieving of the for the expressly or facts state his conclusions liability the unless the disclosure embraces request of law unless is made there- principal. Norswing name of v. Lake for.” Service, Flying land 237 P.2d 193 Or. The Kazal case can be no solace to the оf appellant. In that case defendants’ motion majority opinion that agree I with the involuntary 41(b) dismissal under Rule from which there was sufficient evidence of grant- the Rules of Civil Procedure was Myers- well find that the court below could completion ed plaintiff’s after of evidence. an of Leiber knew Weirich was Here the court took the under ad- matter company, visement at the close of all the evidence not, however, Company. agree that I do gave judgment later defendant this is sufficient to relieve the Wei- on the merits. responsibility the contract rich from the on Judgment affirmed. signed. he The fact that Weirich which ‍‌‌​‌‌‌‌​​‌​‌‌​​​​‌​‌‌‌‌​‌​‌‌‌‌​‌​‌​‌​​‌​‌​​​‌​‌‌‍Develop- for Northern-Aire DONOFRIO, J., concurs. Cоmpany prevent him from ment could not making interest a contract for his own CAMERON, Judge (dissenting). appellant, Myers-Leiber. It was regret I I that must dissent. duty Myers-Leiber to determine of capacity signing this which Weirich Myers- brought by an action upon duty contract. Sign against Leiber L.W. Wei- capacity, Myers-Leiber of inform Weirich’s rich, dba Northern-Aire lia- relieve himself of and if he wished to upon a The contract Club written contract. Myers-Leiber duty notify bility his was to Inc., Myers-Leiber, is betwеen and North- case principal (in this the name of the Country Club, Flag- ern-Aire Development Company). staff, Arizona. The contract was much by asking too Myers-Leiber agent, feel that it by an I do not authorized liability personal avoid agent who would and: contract, principal on a written to disclose the name mentioned the name of his principal by principal’s exact contract his at the time the was executed.” Agency, pp. name The rea- written contract. Am.Jur.2d Only quite sons for this are to me clear. agent really he shall knows who intends stated, For the reasons above I would performance be liable for the of the con- reverse the decision the lower court. It in- tract. could well be that the tends himself assume jointly

either alone or with his may

or it be that he intends that

principal performance shall liable be

of this If written contract. the latter case, duty upon there is a him at the clearly

time of the contract indicate to party just the other who shall bе liable on HARLEYSVILLE MUTUAL INSURANCE parties signing. the contract are Of COMPANY, Pennsylvania cor- course, way by the easiest do this is poration, Appellant, placing the exact name of *5 clearly the contract and to show signing representative capacity Henry LEA, Appellee. he is in a capacity. rather than an individual 1 CA-CIV 117. party fact prepared that the other con- Appeals Court o£ of Arizona. tract incorrect name does rе- responsibility lieve the of the Feb. 1966. correcting name on the contract there- Rehearing Denied Feb. 1966. by informing party the other iden- March Review Denied tity party par- and the or perform- ties who will he liable for the

ance of said Having contract. failed to case,

do this in the instant I do not be- complain

lieve that can now when

Myеrs-Leiber attempts to hold him liable performance of said contract.

“Since an who contracts name, although

own behalf on of the apt who fails ‍‌‌​‌‌‌‌​​‌​‌‌​​​​‌​‌‌‌‌​‌​‌‌‌‌​‌​‌​‌​​‌​‌​​​‌​‌‌‍language to use anyone himself,

to bind other than

personally liable on the contract thus

made, it follows that an will be personally

held liable on written con- by

tracts made him for an undisclosed

principal. words, In other if the

contracts his own name he cannot

escape liability plea on the that he acted of another where he did identity

not disclose the other’s at the Moreover, connection,

time. in this he

may parol not introduce evidence to

show, exonerating with a him- view

self, that he disclosed his