Barbre v. Goodale

• Decision Date: 27 January 1896
• Citation: 28 Or. 465,43 P. 378
• Parties: BARBRE v. GOODALE. [1]
• Court: Oregon Supreme Court

43 P. 378

28 Or. 465

BARBRE v. GOODALE. ^[1]

Supreme Court of Oregon

January 27, 1896

Appeal from circuit court, Lane county; J.C. Fullerton, Judge.

Action by J.I. Barbre against J.C. Goodale. There was a judgment for plaintiff, and defendant appeals. Affirmed.

L. Bilyeu and J.M. Williams, for appellant.

George B. Dorris, for respondent.

WOLVERTON, J.

This is an action to recover upon two separate causes. The first is upon a written agreement which purports upon its face to be the agreement of one G.W. Handsaker of the first part, and J.C.Goodale, of the second part. By its terms, in brief, the first party agrees to cut, haul bank, and deliver to the second party, 2,000,000 feet of fir logs, and, if certain conditions of the lumber market continued to prevail, an additional 500,000 feet, at a certain point upon the McKenzie river, in Lane county, at the rate of $3 per 1,000, to be paid by the second party as follows: $1 per 1,000 when the logs were cut and banked, and $1 per 1,000 when scaled and rolled in the river, and such balance as should be found due between the parties within 31 days thereafter. The last clause is as follows: "It is further understood and agreed, and is a part of the consideration of this agreement, that the second party reserves out of and deducts from the balance that may be due the first party, after making said first two payments, any sum or sums that may then be due or to become due to the second party from J.I. Barbre, or for which he is responsible, to pay J.I. Barbre not to exceed $1,700, the obligations of which are now created." The contract purports to be under seal. The plaintiff having cut, hauled and banked 1,442,000 feet of logs, and cut in the timber 382,000 feet more, and while proceeding with the performance of the contract, the defendant, on March 1, 1892, notified and directed him to discontinue the work, as he would not pay for or take any more of such logs. Whereupon plaintiff commenced this action to recover under the contract for such logs as he had cut and banked, and also for such as he had cut in the timber. The complaint proceeds upon the theory that G.W. Handsaker was Barbre's agent in the execution of said contract, and that it was signed and executed in his name, instead of Barbre's, by consent of defendant, and hence that Barbre is entitled to sue upon the agreement solely and in his own name. The second cause of action is based upon the sale and delivery by plaintiff to defendant of 987,000 feet of other logs at $3.25 per 1,000, upon which a balance of $472.34 is claimed. To this complaint a general demurrer was filed, but as it goes to the whole complaint, and one of the separate causes of action being confessedly well set out, the demurrer was therefore properly overruled by the court below. Upon trial had before a jury, the verdict was for plaintiff in the sum of $214, and from the judgment entered thereon defendant appeals.

At the trial, plaintiff, while a witness in his own behalf, was asked, and permitted to answer, over the objection of the defendant, the following questions "Question. How did that clause about the $1,700, which allows Goodale to deduct from last payment amount due him from Barbre, not to exceed $1,700, come to be in the contract? Answer. I had been logging for Goodale, and he had paid me about $1,700 on logs which were claimed by the O. &amp C.R.R. Co., and it sued, or threatened to sue, him to recover the value of the logs. If he had to pay the railroad company for the logs, this had to be deducted out of the contract price of those logs. Q. State what the conversation was, at the time of your entering into the contract, as to who the true parties to the contract should be. A. Mr. Goodale and I had a conversation about making the contract to get out some logs. I wanted to get out some logs for him,--about 2,000,000 feet. I had the teams and everything necessary to carry on logging. Mr. Goodale said that he would let me have a contract to get out 2,000,000, but did not want to have the contract made in my name; that the railroad company had sued and he was afraid that if the contract was in my name the company would make trouble; and he said, 'Why not make it in the name of George?' (meaning G.W. Handsaker). I told him that I did not want to bother George. Goodale said it would not be any trouble to him; that I could go on and carry on the contract just the same. I said I could see George about it, and I did speak to George about it, and he said, so long as he would not be bothered in any way, he would assist me in the matter; and it was agreed between Mr. Goodale, Mr. Handsaker, and myself that the contract should be drawn up and signed by G.W. Handsaker, and that I should carry it out, and that it should be my contract, and not the contract of G.W. Handsaker, and that Mr. Handsaker should not be bound by the contract. Under this agreement the contract was drawn up and signed by Mr. Handsaker and Goodale, and I did the work that was done under it." This, with other testimony of the same nature, all elicited over defendant's objection, forms the basis of the principal grounds of error relied upon for the reversal of the judgment below. The question is here presented whether it is competent to show by parol testimony that a contract executed by and in the name of an agent is the contract of the principal, where the principal was known to the other contracting party at the date of its execution. There are two opinions touching the question, among American authorities,--the one affirming, and the other denying; but the case is one of first impression here, and we feel constrained to adopt the rule which may seem the more compatible with the promotion of justice, and the exaction of honest and candid transactions between individuals. The English authorities are agreed that parol evidence is admissible to show that a written contract executed in the name of an agent is the contract of the principal, whether he was known or unknown; and the American authorities are a unit so far as the rule is applied to an unknown principal, but disagree...