Drake v. Pope
| Decision Date | 07 April 1906 |
| Citation | 95 S.W. 774,78 Ark. 327 |
| Parties | DRAKE v. POPE |
| Court | Arkansas Supreme Court |
Appeal from Howard Circuit Court; James S. Steel, Judge; affirmed.
Judgment affirmed.
W. C Rodgers, for appellant.
1. Appellant acted only as a broker, did not sell the feedstuff himself, had no part in filling the order, had no interest in the company that filled the order, and is not liable. The commission company shipped the corn to appellee, direct, with bill of lading attached. The mere sending of an order did not constitute a contract.
2. The order sent to appellant was merely an offer to buy. He could not fill the order, did not accept it, but requested the commission company to do so. They accepted and filled the order, and were paid by appellee. The court's instruction making appellant liable if he caused the corn to be shipped was too broad, besides being in direct conflict with the instruction given to the effect that appellee could not recover unless the evidence showed that it was bought from appellee, and the order therefor filled by him. Conflicting instructions are no guide to juries and should never be given. 74 Ark. 437.
Feazel & Bishop, for appellee.
1. Appellant did not disclose to appellee that he was acting as a broker in the transaction. Under the facts both appellant and the commission company are liable. An agent can make a valid contract with a third party in his own name without disclosing his principal, which is binding upon the agent in his individual capacity, and either party may enforce the contract against the other independently of the undisclosed principal. 76 Ark. 558; 114 N.Y. 535; 43 Am. Dec. 681 and note; 57 Am. St. 536. Having made such a contract, he can not relieve himself by showing that he was acting simply as an agent or broker for a principal, whether the latter was disclosed or not. 84 Wis. 52; 42 Wis. 565. If appellant would excuse himself on the ground of agency, he must show that he disclosed his principal at the time of the contract. 60 Ark 68.
2. The commission company, in shipping the corn at appellant's request, did so as his agent. Having selected it to carry out the contract, he became responsible for its failure to comply with the terms of the contract.
O. T. Pope ordered of A. F. Drake a carload of feedstuff, containing corn of a certain grade, among other stuff. The car arrived with bill of lading attached to draft in favor of Cunningham Commission Company for the price of the carload. Pope paid the draft, and received the car, and discovered the corn was not in compliance with the order, and returned it. This suit is to recover the price of the corn, and the only question litigated was whether Drake or the Cunningham Commission Company was the responsible party.
The court instructed the jury that if Pope ordered the corn from Drake at a guaranteed price and quality, and Drake shipped or caused to be shipped the corn which was of an inferior quality to that ordered, and Pope was compelled to pay for the corn before he had an opportunity to inspect it, then he was entitled to recover, without regard to whether said corn was shipped by Drake or some other person from whom said Drake procured it to be shipped. This instruction was correct, and in consonance with the facts as testified to by Pope. It could make no difference whether Drake personally furnished the corn or caused another to furnish it for him in compliance with his order from Pope.
The evidence on Drake's behalf tended to prove that he was a mere broker, and had not the corn for sale, and acted as broker in procuring it for Pope, and had no interest beyond his brokerage, and that these facts were known to Pope. Not only does his testimony tend to prove this to have been the status, but there are statements in Pope's testimony corroborative of this theory, and the draft in favor of the Cunningham Commission Company, attached to the bill of lading, was a circumstance of more or less probative force on the same side of the controversy. Thus an issue of fact was squarely presented. The instruction referred to and instructions 1, 4 and 5 given at instance of appellant (all of which will be set out by the Reporter) [*] correctly presented the requisite facts to be found for Pope to recover, and Pope's evidence sustained this view, and the jury accepted it as true. On the other hand Drake was entitled to have submitted to the jury his theory of a sale as broker, and he had ample evidence to have gone to the jury and to have sustained a verdict, if it had been accredited by the jury. It is well established that a broker can not be held personally liable to the third party upon a contract for a disclosed principal; and if the third party knew, or had sufficient knowledge to create an inference, that the broker was acting for another, then the broker is not liable. But if he does not disclose his principal nor the fact that he is acting as a broker, but deals personally, then he is liable, although in fact he acted as broker, and his principal may be held after...
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