Gillis v. White

• Citation: 106 So. 166,214 Ala. 22
• Decision Date: 15 October 1925
• Docket Number: 4 Div. 140
• Parties: GILLIS v. WHITE.
• Court: Supreme Court of Alabama

106 So. 166

214 Ala. 22

GILLIS v. WHITE.

4 Div. 140

Supreme Court of Alabama

October 15, 1925

Rehearing Denied Nov. 19, 1925

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Action by A.C. White against J.E. Gillis. From a judgment for plaintiff, defendant appeals. Affirmed.

Chauncey Sparks, of Eufaula, for appellant.

Sollie & Sollie, of Ozark, and G.E. Jones, of Clayton, for appellee.

SOMERVILLE J.

Where a complaint declares on a contract as made with the plaintiff by one of the defendants as the agent of another defendant it states no cause of action against the agent defendant.

When one contracts merely as the agent of a disclosed principal he binds either his principal or himself, but not both; and a joint action against both involves a practical as well as a legal anomaly.

If the principal was bound, as intended, the agent cannot be held liable on any principle of law or justice. But if the agent though assuming and intending to bind a designated principal, and not himself, fails for want of authority to do so, then the agent is himself liable upon the contract as if he were nominally a principal. Whiteside v. Jennings, 19 Ala. 784, 788; McCalley v. Wilburn, 77 Ala, 549, 552; Gillaspie v. Wesson, 7 Port. 454, 461, 31 Am.Dec. 715. This form of liability seems to be thoroughly established by our decisions, though in most jurisdictions such an assumption of agency gives rise only to an action for damages as for breach of an implied covenant that the agent is duly authorized, or as for a deceit practised by means of the false assumption of agency. 2 Corp. Jur. 806, § 479(d).

The demurrers interposed by Gillis to the special counts should have been sustained, whether as for misjoinder of parties, or because they failed to state a cause of action against him. This error must, however, be pronounced harmless, if, upon the facts shown, plaintiff was entitled to recover under any one of the common counts.

By request, the trial court made a special finding of the facts in substance as follows: The defendant Gillis was not in fact the agent of the defendant Campbell, Cleaver & Co., Inc., but was an independent buyer of cotton, and the contract between him and plaintiff with respect to the handling of plaintiff's 26 bales of cotton was an individual affair, although plaintiff believed and acted upon the impression that Gillis was the agent of Campbell, Cleaver & Co., Inc., and had the right to bind them in the transaction in question. There is no dispute as to the amounts of money received by plaintiff when the cotton was delivered, and afterwards from Gillis by way of advancement or restitution, nor as to the amounts paid by plaintiff to Gillis and to Campbell, Cleaver & Co., by way of margins on the cotton supposedly held by the latter for plaintiff's benefit. The net amount due to plaintiff, after all credits, and including interest...