Arizona Life Ins. Co. v. Lindell

• Decision Date: 16 April 1914
• Docket Number: Civil 1348
• Citation: 140 P. 60,15 Ariz. 471
• Parties: ARIZONA LIFE INSURANCE COMPANY, a Corporation, Appellant, v. JOHN LINDELL, Appellee
• Court: Arizona Supreme Court

140 P. 60

15 Ariz. 471

ARIZONA LIFE INSURANCE COMPANY, a Corporation, Appellant, v. JOHN LINDELL, Appellee

Civil No. 1348

Supreme Court of Arizona

April 16, 1914

APPEAL from a judgment of the superior Court of the County of Yavapai. Frank O. Smith, Judge. Modified and affirmed.

The facts are stated in the opinion.

Messrs Hayes & Laney, for Appellant.

Mr Richard P. Talbot and Mr. Daniel E. Parks, for Appellee.

OPINION

ROSS, J.

The appellant insurance company, acting by its agent, George Moselle, on July 31, 1911, and the appellee, acting in his own behalf, had dealings and transactions as follows: The appellee subscribed to fifty shares of the capital stock of the appellant insurance company, agreeing to pay therefor $25 per share, $312.50 in cash, and balance of $937.50 in notes bearing six per cent interest. Simultaneously, and as a part of the same transaction, another paper was executed and delivered to appellee, to wit:

"Temporary Receipt.

July 31, 1911.

"Received of John Lindell of Prescott subscription for fifty shares of the capital stock of the Arizona Life Insurance Company at $25.00 a share, upon which following settlement has been made; $312.50 cash and note for $937.50 for nine months, bearing six (6) per cent interest, from September 1st. Of the settlement made under this subscription, there shall be deposited with Prescott National Bank of Prescott for the benefit of the company an amount equal to eighty (80) per cent, which shall only be subject to withdrawal by the properly elected certifying settlement as above.

"ARIZONA LIFE INSURANCE CO.,

"GEO MOSELLE, Agent."

Indorsed on the back thereof, in writing, was this memorandum agreement:

"I hereby agree to return to John Lindell at the end of ninety days his full subscription or any part of same, as he may desire.

"[Signed] GEO. MOSELLE."

Appellee made the cash payment to Moselle, the agent of the appellant, and delivered to him his note or notes for balance. Within ninety days from July 31, 1911, appellee demanded of the appellant the return of the cash payment of $312.50, which was refused. No other payments were made, and no stock was ever issued to appellee. This suit was instituted to recover the cash payment of $312.50. It was tried by the court without a jury, and judgment went against appellant for the full amount, together with interest at six per cent from July 31, 1911. From the judgment and order overruling motion for a new trial, this appeal is prosecuted.

It is the contention of appellant that the written indorsement on the temporary receipt was the personal obligation of Moselle and not the obligation of the insurance company, and that the court erred in admitting it in evidence and in permitting witness Lindell (appellee) to testify that Moselle told him that he was acting, in making such agreement, for and in behalf of the company and not for himself, because said evidence was for the purpose of varying or altering the unambiguous terms of a written contract.

The memorandum agreement to refund the cash payment made by appellee is certainly binding upon Moselle, who signed it, but the question is whether the rules of evidence will permit the use of oral evidence for the purpose of showing that, in the execution of the agreement, Moselle was the agent acting for and in behalf of his principal, the insurance company, and though the latter is not disclosed as principal, yet it is bound by the agreement.

Jones, in his commentaries on Evidence, volume 3, section 452, states the rule: "In order to charge the real principal, it is always competent, in whatever form a parol or written contract is executed by an agent, to ascertain by evidence dehors the instrument who is the principal; whether it purports to be the contract of an agent or is made in the name of the agent as principal. So that, while, if one signs an agreement without indicating in any way that he acts as agent for a principal, he cannot, in order to escape the liability, prove by parol that he was acting for another, yet such agency may be proved for the purpose of binding the principal, or for the purpose of giving the principal the benefit of the contract."

Wigmore on Evidence, volume 4, section 2438, gives the rule as follows: "(a) In the first place, where the unnamed principal is unknown to the obligee, it is proper to give force to the contract between principal and agent for the purpose of charging or entitling the principal, though not of exonerating the agent, unless in the particular case the document plainly was intended to deal otherwise with the transaction. (b) In the second place, where the unnamed principal was known to...