Heffron v. Pollard

• Decision Date: 26 February 1889
• Citation: 11 S.W. 165
• Court: Texas Supreme Court
• Parties: HEFFRON <I>v.</I> POLLARD.

11 S.W. 165

HEFFRONv.

POLLARD.

Supreme Court of Texas.

February 26, 1889.

Appeal from district court, Galveston county; WILLIAM H. STEWART, Judge.

Action by William H. Pollard against Isaac Heffron. Judgment for plaintiff, and defendant appeals.

Howard Finley, for appellant. Davis & Davidson and F. D. Minor, for appellee.

GAINES, J.

There was a motion submitted with this case to strike from the record certain bills of exceptions, which appear in the statement of facts. A ground of the motion is that the statement of facts appears to have been filed more than 10 days after the motion for a new trial was overruled. The statute requires that bills of exceptions shall be filed during the term, (Rev. St. art. 1364;) and it has been accordingly held that an exception which is shown by a statement of facts filed after the final adjournment cannot be considered. Willis v. Donac, 61 Tex. 588; Lockett v. Schurenberg, 60 Tex. 610. On the other hand, when a bill of exceptions has been filed during term-time, and the date of its presentation to the trial judge does not appear, the presumption is that it was presented within 10 days after the trial was concluded. It is not to be presumed that the judge disregarded the law, and allowed a bill of exceptions which was not presented within the time provided by the statute. We are of opinion that the same presumption should be indulged when the exceptions appear in a statement of facts which has been filed during the term. The statement of facts in this case was filed during term-time, and we therefore conclude that this ground of the motion is not well taken.

A further ground is that the ruling of the court upon the introduction of the written contract offered in evidence does not appear in the statement of facts to have been excepted to. The separate bill of exceptions does, however, show that the exception was reserved; and we think that, when the statement in the bill of exceptions and that in the statement of facts are not inconsistent, both should be looked to, and should be taken together as constituting the bill of exceptions upon the particular matter.

The third and last ground of the motion is that the ground of objection to the testimony is not shown. The failure to state in a bill of exceptions the grounds of objection to the admission of evidence may have an important bearing in determining the correctness of the court's ruling in any particular case, but is not a reason for striking out the bill itself. The motion to strike out the bills of exception is overruled.

The appellee brought the suit in the court below. He alleged that the defendant, who is appellant here, agreed in writing to pay W. H. Pollard & Co. and one F. W. Hendricks a certain price for certain pipe, the dimensions of which he described in his petition, and that he was the owner of the claim by assignment from Hendricks, and his partner, who with himself constituted the firm of W. H. Pollard & Co. The substance of the allegations in the petition with reference to the execution of the agreement is that W. H. Pollard & Co. and F. W. Hendricks "entered into a contract in writing with defendant, the said defendant so contracting in the name of John W. Fry, by which the said Pollard & Co. and the said Hendricks bargained and sold to the said defendant a large amount of property," etc. There is an alternative allegation in the petition in which the execution of the contract is set out in substantially the same language, but which alleges a different effect as to time of delivery and payment. The defendant pleaded non est factum. Upon the trial the plaintiff offered in evidence a contract in writing, of which the following is a copy: "The County of Galveston, State of Texas. This agreement, made and entered into by and between John W. Fry on the one part, and F. W. Hendricks and W. H. Pollard & Co. on the other part. It is hereby understood that the said Jno. W. Fry shall take all of the 24-inch pipe, (concrete,) not exceding 430 lineal feet, and all of the 18-inch pipe, (concrete,) not exceeding 700 lineal feet, at the following prices, viz.: The 24-inch pipe at $1.50 per foot, and the 18-inch pipe at $1.25 per foot, — the said pipe to be paid for at the above rate, as used by the said Jno. W. Fry; and that the said Jno. W. Fry shall not manufacture or use any other pipe of the above-quoted sizes until all the above-noted pipe is consumed in the city of Galveston. [Signed] JOHN W. FRY, per HEFFRON. W. H. POLLARD & CO. F. W. HENDRICKS. Witness: N. A. OLCOTT. W. J. JUNKER." In order to prove the execution of the contract so offered, plaintiff was sworn as a witness, and testified that "the written contract was signed `J. W. FRY, per HEFFRON,' and that it was so signed by Heffron for himself and in his presence;" meaning in the presence of the plaintiff. He also testified that he had made diligent search for the subscribing witnesses, but could not find them. The defendant was then placed on the stand by plaintiff, and testified that he signed the contract, "as it purported, `J. W. FRY, per HEFFRON,' but that he signed it as the agent of Fry, and not for himself, and that he had no personal interest in it." The court thereupon admitted the contract over the objection of the defendant, and the defendant excepted.

We may treat the case, for the purposes of this opinion, as if there was sufficient evidence introduced to show that in executing the contract Heffron used the name of Fry in order to make the contract for his own benefit. We think the evidence subsequently introduced, though conflicting, warranted the jury in finding that the plaintiff's theory of the case was the true one, and it may be doubted whether this would not have cured the error of introducing it for want of sufficient evidence upon that point, if error it were. But the question presents itself whether in a contract like this, which is made in the name of a principal, and which is signed in his name by another as his agent, it is competent to show by parol evidence, in order to recover on the written contract itself, that in signing the agreement the one who purports to sign as agent signed the name of the principal for his own benefit, and with the intention to bind himself. We have been unable to find any case in which this exact point has been determined. There are few branches of law that have given rise to more adjudications than that of principal and agent, and the cases are especially numerous in which the liability of the principal or agent as to third parties is discussed. There are certain principles, however, which are well settled. If the principal be disclosed, and it appear upon the face of the contract that the agent does not intend to bind himself, the agent is not liable. If the principal be not disclosed, it is universally conceded, as to non-negotiable contracts not under seal, that parol evidence is admissible to show the principal, and to hold him liable upon a contract made in the name of the agent for his benefit. This may seem to be an exception to the rule that parol evidence is not admissible to vary the terms of a written...