62 Mo. App. 50 | Mo. Ct. App. | 1895
This appeal is prosecuted by the plaintiff from an order of the court awarding the defendant a new trial. There is no substantial conflict in the evidence, and no just exceptions can be taken to the rulings of the court in admitting and rejecting evidence upon the trial of the cause. The motion for new trial was sustained exclusively on the ground that the court had erred in its declaration of law.
The facts as developed by the evidence, and presumably found by the court, are as follows: Hull, the plaintiff’s assignor, sold certain hogs to one Budweiller, a commission merchant, who in the purchase was acting for the defendant, but who did not disclose the defendant as his principal. It stands uneontroverted, however, that the hogs were bought for the defendant, and that the purchase price was charged to the defendant upon
Where a person deals with the agent of an undisclosed principal, he may hold the agent, or, after disclosure of the principal, he may hold the principal, but he can not hold both. Paterson v. Gandasequi, 3 Smith’s Leading Cases, 1634. Hull, on discovering Budweiller’s principal, elected to hold him, and, by such election, the defendant alone became Hull’s debtor. If the defendant became Hull’s debtor, then there is nothing in the evidence tending to show that the defendant ever paid the debt or any part of it, nor are the garnishment proceedings any defense to this action. The delivery by the defendant to Budweiller of a check payable to Hull’s order was a delivery to the defendant’s
It results from the foregoing observations that the declaration of law made by the trial court was correct, and that the court erred in granting a new trial based on the incorrectness of that declaration. The judgment granting a new trial will, therefore, be reversed, and the cause remanded.to the trial court with directions to overrule the motion for new trial.