Hosey v. Southport Petroleum Co. of Delaware
| Decision Date | 18 February 1943 |
| Docket Number | 6 Div. 38. |
| Citation | 244 Ala. 45,12 So.2d 93 |
| Parties | HOSEY v. SOUTHPORT PETROLEUM CO. OF DELAWARE, Inc. |
| Court | Alabama Supreme Court |
Barber & Barber, of Birmingham, for appellant.
D.H Markstein, Jr., of Birmingham, for appellee.
Appellee Southport Petroleum Company of Delaware, Inc., a corporation sued D.A. Hosey, Cities Sales Corporation, a corporation, and Lewis Bobo on account. Defendants pleaded in short by consent. The cause was tried before the court without a jury, and judgment rendered for plaintiff against D.A Hosey and Cities Sales Corporation. The appeal is by D.A. Hosey alone.
That the debt was incurred and that $1,199.90, the balance sued for, was still unpaid, were unquestioned facts. The real issue of fact was: Who owed the debt?
The account was charged on plaintiff's books, and sales tickets made out to Cities Sales Corporation.
It appears this was a domestic corporation which for some years had engaged in a tank-truck business selling gasoline. The line of business is not made clear, but we infer the above from the run of the evidence. Appellant was the owner of all the stock, and actively ran the business. In 1939, desiring to go out of business, he sold the tank-trucks to Lewis Bobo on conditional sales contracts. On December 27, 1939, the corporation was dissolved by agreement executed and filed as provided by Section 7063, Code of 1923, Code 1940, Tit. 10, § 104.
The account sued upon was incurred February 27 to March 22, 1940, the balance unpaid representing purchases made March 15th to March 22nd.
Plaintiff's evidence tended to show that Mr. Hosey, doing business in the corporate name, had purchased gasoline from plaintiff during 1939; that he, personally, opened up the new account of large scale purchases, beginning February 27, 1940; that the plaintiff had no knowledge of a dissolution of the corporation; that deliveries were made to tank-trucks still carrying the name "Cities Sales" or "Cities Sales Corporation"; that Bobo had no credit with plaintiff, and his name was unknown as a purchaser when deliveries were made. Other evidence tended to show that up to about April 1, 1940, the business was still run in the name of Hosey, or Cities Sales Corporation, Bobo working on a salary basis, the employees paid by Mr. Hosey; that he opened up a bank account in the name of Denson Hosey, in which the proceeds of sales were deposited, with such collections as were made on old accounts; the bank was furnished a signature card authorizing Mr. Parrish to check on the account in Hosey's name; and checks were regularly drawn on this account in payment for purchases from plaintiff as late as March 30, 1940. Defendant's evidence conflicted with that of plaintiff as regards opening the account on his own credit or in the name of the corporation. He claimed he had gone out of business, that this was known to plaintiff; that the account was opened for Bobo, who was running the business.
If Mr. Hosey incurred the indebtedness in his own name or in the name of the dissolved corporation, he was personally liable under elementary principles. One who acts as a representative of a nonexistent principal in the purchase of property received and disposed of in his own operations is personally bound on the well-known principle that one who undertakes to act for another without authority to bind the other, binds himself. Liability here may also be rested on the use of the old corporate name as a trade name in these transactions. The evidence made a case for the trier of fact on these issues.
This outline will suffice as a background for review of the rulings presented for error on this appeal.
Evidence tended to show that about April 1, 1940, plaintiff's manager, Mr. Reynolds, Mr. Hosey and Mr. Bobo had a conference or meeting looking to payment of this account. There is conflict in some respects as to what was there said and agreed. Without dispute Mr. Hosey there set down on a piece of paper certain data and signed his name thereto as follows:
Evidence disclosed the first number, $1,391.56, was the balance due on the account at that time. Plaintiff's evidence was that Mr. Hosey agreed to pay $791.56 in April, and that the balance, $600, would be taken care of later, and this memorandum was made and signed as evidence of this agreement. The admission of this writing in evidence over objection of defendant is assigned as error. It is urged this is an instrument void on its face because of a patent ambiguity; not to be aided by parol evidence, and, therefore,...
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