Gray v. Elder
| Decision Date | 22 January 1932 |
| Docket Number | 6002 |
| Citation | 240 N.W. 477,61 N.D. 672 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Stutsman County Jansonius, J.
Affirmed.
S E. Ellsworth, for appellant.
Agent acting within scope of powers for known and disclosed principal is not liable. 31 Cyc. 1557.
An agent acting for a known principal and within the scope of his authority does not become personally responsible. Teele v. Otis, 66 Me. 329.
Where one deals with the agent of a known principal, in the regular order of conducting the principal's business by such agent, the presumption, in the absence of any evidence to the contrary, is that the credit is extended to the former. Mechem, Agency, § 558; Alexander Lbr. Co. v McGeehan (Wis.) 102 N.W. 571 2 Enc. L. & Pr. 1147; Great Lakes Towing Co. v. Worthington, 147 F. 926; Monticello Bank v. Bostwick, 77 F. 123.
The failure of the agent to expressly disclose his agency will not make him individually liable, where the other party knew that he was dealing with a certain principal. Mechem, Agency, § 1413; Forrest v. McCarthy, 30 Misc. 125.
If the other party have actual knowledge of the principal's identity, it will have the same effect to relieve the agent as a disclosure by the latter. 31 Cyc. 1558; Kunhert v. Angell, 8 N.D. 198, 77 N.W. 1015, 10 N.D. 59, 84 N.W. 579; Johnson v. Armstrong, 18 S.W. 594.
It is not necessary to the competency of a pleading, as an admission against the party, that it be one filed in an action between the same parties. Union National Bank v. Western Bldg. Co. 44 N.D. 336, 175 N.W. 628; Power v. Williams, 53 N.D. 54, 205 N.W. 9; Johnson v. Hawthorne Ditch Co. 32 S.D. 499, 143 N.W. 959; Lee v. Chicago, St. P.M. & O.R. Co. (Wis.) 77 N.W. 714; O'Riley v. Clampet (Minn.) 55 N.W. 740.
A total failure to instruct upon the essential and controlling issues in controversy constitutes prejudicial error. Putnam v. Prouty, 24 N.D. 577, 140 N.W. 93.
Coffey & Strutz, for respondent.
An appeal will not lie from an order denying a motion for judgment notwithstanding the verdict. Such an order is not an appealable order. Strattor v. Rosenquist, 37 N.D. 116, 163 N.W. 723; Turner v. Crumpton, 25 N.D. 134, 141 N.W. 209; Welch Mfg. Co. v. Herbst Department Store, 53 N.D. 42, 204 N.W. 849; Houston v. Minn. St. P. & S. Ste. M.R. Co. 141 N.W. 994; Morris v. Minneapolis, St. P. & S. Ste. M.R. Co. 32 N.D. 366, 155 N.W. 861; Erickson v. Wiper, 33 N.D. 193, 157 N.W. 592.
The fact the principal is disclosed after the contract does not release the agent. Lull v. Anamosa Nat. Bank (Iowa) 81 N.W. 794.
If an agent would avoid personal liability the duty is on him to disclose his principal, and not on the party with whom he is dealing to discover him. Curtis v. Miller (W. Va.) 80 S.E. 774; Cochrane v. Rice (S.D.) 128 N.W. 583; Bridges v. Bidwell (Mich.) 29 N.W. 302; Rathbun v. Allen (Mich.) 98 N.W. 735.
Plaintiff Gray commenced an action against the defendant in justice court. Judgment was rendered in his favor and the defendant appealed to the district court. While this action was pending in the district court plaintiff Vessey was permitted to intervene.
Judgment was rendered in favor of the plaintiffs in the district court and the defendant made a motion for judgment notwithstanding the verdict which motion was denied.
From the order denying the motion for judgment notwithstanding the verdict and from the judgment the defendant appeals.
Respondent urges that the order denying motion for judgment notwithstanding the verdict is not an appealable order. At the close of the trial in the district court the defendant moved for a directed verdict or for a dismissal. Later he made this motion for judgment notwithstanding the verdict; but did not move for a new trial.
An order denying a motion for judgment notwithstanding the verdict is not an appealable order. It is only when the same is coupled with a motion for a new trial and the court denies the motion for judgment but grants or denies the motion for a new trial that the moving party "may appeal from the order as a whole and have the ruling on the motion for judgment notwithstanding the verdict reviewed in the Supreme Court." Welch Mfg. Co. v. Herbst Department Store, 53 N.D. 42, 204 N.W. 849. Thus the appeal considered is the appeal from the judgment entered in this case. We review the testimony simply to see whether it sustains the judgment.
There are ten specifications of error. Six of these specifications deal with the introduction of testimony, one deals with an alleged failure to instruct the jury in a certain matter specified, the remainder are alleged errors in overruling the motion for a directed verdict and motion for judgment notwithstanding the verdict.
The main issue involved is whether the action is brought against the proper defendant. This action is brought against B. W. Elder individually, "doing business as the Elder Horse Sales Company." There is, and was at the time the transaction involved took place, a corporation known as the Elder Horse Sales Company of which B. W. Elder was the president and manager. It is the contention of the defendant that any contract made by the plaintiff was made with the corporation, and not with B. W. Elder.
During the trial plaintiff Vessey was asked upon cross-examination "Did you remember how that check was signed?" -- referring to a check exhibited to him. We may presume defendant had in mind that such check had been given to the plaintiff prior to the making of the contract involved, was issued by the corporation itself, and signed by the corporation, and that the cross examination was for the purpose of showing the plaintiff then knew of the existence of the corporation. There is nothing to indicate this however. No offer was made to prove the check was signed by the corporation, no checks produced signed by the corporation and no one testifies as to the signature on the check nor offers to testify, even though the defendant himself was a witness. Hence there is nothing to indicate the court erred in sustaining the objection.
The contract involved herein was entered into on or about April 1, 1930, and thereafter in July of that year the Elder Horse Sales Company, a corporation, commenced an action against the plaintiff Vessey and in the complaint alleged it was a corporation. Plaintiff Vessey served his answer in these cases denying certain allegations of the complaint, including the allegation of incorporation though such denial was not sufficient to raise an issue thereon. Defendant sought to introduce the pleadings in these cases for the purpose of showing admissions on the part of the plaintiff, and knowledge of the existence of the corporation at the time the contract involved was made. The court excluded the exhibits on the theory that whatever notice plaintiff had by reason of such actions could not affect a contract entered into prior thereto. No admissions in the pleadings were pointed out and the plaintiffs testified they knew nothing about the existence of the corporation at the time the contract was entered into. It is clear that allegations in complaints served three months after the contract was made would not be notice. No error of the court thereunder has...
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