J. J. Crable & Son v. O'Connor

• Decision Date: 30 June 1913
• Docket Number: 715
• Citation: 133 P. 376,21 Wyo. 460
• Parties: J. J. CRABLE & SON v. O'CONNOR
• Court: Wyoming Supreme Court

133 P. 376

21 Wyo. 460

J. J. CRABLE & SON v. O'CONNOR

No. 715

Supreme Court of Wyoming

June 30, 1913

ERROR to the District Court, Big Horn County, HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Judgment affirmed.

James M. Workman and William C. Snow, for plaintiffs in error.

Parol evidence is inadmissible to contradict the terms of a written instrument. (21 Ency. Law, (2nd Ed.) 1078.) Such evidence is inadmissible to show that a third party is interested in the contract as a partner, thereby contradicting the terms of the instrument. (Chambers v. Brown, 69 Ia. 213, 28 N.W 561.) The parol admission of a party made in pais is competent evidence only of the facts which may be lawfully established by parol evidence. (Greenleaf on Ev., Sec. 203; 1 Ency. L. (2nd Ed.) 716.) A person contracting with an agent who has full knowledge of the principal, but extends credit to the agent exclusively, cannot thereafter resort to the principal, and the latter is not bound, although the agent acted in the course of his employment and for the benefit of his principal. (31 Cyc. 1570; Ford v. Williams, 62 U.S. 287, 16 L.Ed. 36; 1 Ency. L., (2nd Ed.) 1138; Henderson v. Mayhew, 2 Gill. (Md.) 393, 41 Am. Dec. 434; Peterson v. Roach, 32 O. St. 374, 30 Am. Rep. 607; Holmes v. Burton, 9 Vt. 252, 31 Am. Dec. 621; Mechem on Agency, Sec. 558.) The usual and decisive indication of an exclusive credit to the agent is where the creditor knows that there is a principal, but makes the charge against the agent. It is a question of intention. (Taintor v. Prendergast, 3 Hill, 72, 38 Am. Dec. 618; 1 Bates on Partnership, Sec. 446-447; 22 Ency. Law, (2nd Ed.) 163; Mechem on Agcy., Sec. 446.) Agency cannot be proved by the declarations of the one assuming to act as agent. (1 Ency. L., (2nd Ed.) 690; Mechem on Agcy., Sec. 100; Blake v. Bremyer, 84 Kans. 708, 115 P. 538.) One dealing with an agent as principal who afterwards discovers the concealed principal may then elect to hold one or the other, but he cannot hold both, and such election must be within a reasonable time after discovering the principal. (Mechem on Agcy., 698, 699; 1 Ency. L., (2nd Ed.) 1139; Gay v. Uren, (Minn.) 26 L. R. A. 742.) The fact that a partnership has received the benefit of merchandise purchased by one partner on his individual credit does not entitle the creditor to look to the firm for payment unless the partner acted as agent in making the purchase. (22 Ency. L., (2nd Ed. ) 164; 1 Bates on Partnership, Sec. 446.) The acceptance of a note of an individual with full knowledge of the firm or principal discharges the latter. (Paige v. Stone, 10 Metc. (Mass.) 160, 43 Am. Dec. 420.) Where at the time of dealing with an agent the principal is not concealed, the act of giving credit to the agent constitutes an election. (Morrell v. Kenyon, 48 Conn. 314, 40 Am. Rep. 174; 1 Ency. Law, (2nd Ed.) 1139, note 1.)

The testimony of the attorney who drew the contract was inadmissible because it contradicted the written instrument, and also because agency cannot be shown in that manner so as to bind the partnership who was not named in and did not sign the contract. The plaintiff was not entitled to recover against the partnership for the reason that when he signed the contract he had full knowledge of the partnership and elected to give credit to the partner with whom he contracted. The evidence, we think, establishes that the teams were leased by E. A. Crable individually and upon his own responsibility, and not for the firm.

The court erred in overruling the motion to quash the writ of attachment. There is no evidence to sustain any of the allegations of the affidavit concerning fraud. The allegation that one of the defendants, J. J. Crable, was a nonresident, afforded no ground for attachment. No claim was made against him as an individual. The partnership was a resident of the state, notwithstanding the fact that one of its members was not. The firm was doing business and one of the partners resided here, and the property was attached as the property of the firm, and it was shown that it belonged to the firm.

C. A. Zaring and Thomas M. Hyde, for defendant in error.

The testimony of the attorney who drew the contract was competent to show that E. I. Crable when he signed the contract was acting as a member of the firm of J. J. Crable & Son, and for their benefit. Parol evidence is admissible to show the capacity in which a person acts, the actual relation of parties to a writing, and that persons not named therein are in fact interested. (Jones on Ev., (2nd Ed.) par. 452 and cases cited; Curran v. Holland, 75 P. 46; Exchange Bank v. Hubbard, 62 F. 116.) A written contract is binding on a firm, although signed by one of the partners only instead of in the firm name, when it is shown that it was made in a firm transaction and intended as an obligation of the partnership. (30 Cyc, 485; Brewing Co. v. Hawke, (Utah) 66 P. 1058.)

In the affidavit supporting the motion to quash the attachment the averment that J. J. Crable was a non-resident of the state was not denied. Upon a motion to dissolve an attachment on the ground that the allegations in the affidavit for attachment are untrue all of the allegations must be traversed. (Bank v. Latham, 8 Wyo. 316.) The court therefore properly overruled the motion to dissolve the writ.

POTTER, JUSTICE. SCOTT, C. J., and BEARD, J., concur.

OPINION

POTTER, JUSTICE.

The defendant in error was plaintiff in the court below and brought this action against J. J. Crable, E. I. Crable and J. J. Crable & Son, plaintiffs in error here, to recover a sum of money alleged to be due as rent for certain teams delivered to J. J. Crable & Son by the plaintiff pursuant to a written contract set out in the petition as follows:

"This agreement made this 5th day of September, 1910, between Pat O'Connor, of Thermopolis, Wyoming, party of the first part, and E. I. Crable of Thermopolis, Wyoming, party of the second part.

"Witnesseth, that the said party of the first part, for and in consideration of the agreements hereinafter contained, to be kept and performed by the party of the second part, does hereby lease unto the party of the second part eleven two-horse teams composed of horses and mules, for and during three months from date hereof.

"And the party of the second part, for and in consideration of the agreements herein contained by the party of the first part, does hereby agree that he will pay the said party of the first part for the use of said property the sum of $ 330 per month, same being $ 30.00 per team, that he will keep the said mules and horses well fed and well cared for and in a first-class and healthy condition, and that he will exercise every care and diligence in the proper care of the same; that he will pay the value of all animals lost, destroyed or injured in any way by reason of his negligence or the negligence of his employees, and that at the termination of this lease he will re-deliver the said property to the party of the first part at Thermopolis, Wyoming, in as good condition as when received by him.

"It is further understood and agreed that the said rental shall be due and payable by the second party to the first party on the 25th day of each month hereafter.

"In witness whereof the parties hereto have hereunto set their hands and seals this 5th day of September, 1910.

"PAT O'CONNOR.

"E. I. CRABLE."

The petition alleges that J. J. Crable & Son is a partnership composed of J. J. Crable and E. I. Crable; that the defendant E. I. Crable, while acting as a member of said firm, entered into the said contract with the plaintiff for and in behalf, and for the use and benefit, of said partnership; that pursuant to the contract the plaintiff delivered to said firm of J. J. Crable & Son eleven teams, "which were thereupon taken to a certain railroad grade between Scribner and Fromberg, Montana, and there used for a period of about three months by said J. J. Crable & Son in working upon their contract in the construction of a certain grade between the places above mentioned." That subsequent to the execution of the contract it was adopted and ratified and the proceeds and benefits thereof were taken and enjoyed by said firm. The petition contains an itemized statement of the amount claimed to be due for the rental of said teams, showing that amount to be $ 1,136.25, and also a statement of additional items amounting to $ 79.35, including charges for rent of three carts, and certain property claimed in the testimony of the plaintiff to have been delivered with the teams and not returned, making a total alleged indebtedness of $ 1,215.60, on which a credit of $ 212.75 is allowed by the petition for hay furnished the teams, explained in plaintiff's testimony to be for hay furnished after defendants had ceased to use the teams, the net amount alleged to be due, and for which judgment is prayed, being $ 1,002.85.

An answer was filed by E. I. Crable admitting the execution of the written contract and that he is indebted to the plaintiff under the same in the sum of $ 990, and denying each and every other material allegation in the petition. He alleged by way of set-off that the plaintiff was indebted to him in the sum of $ 80.30 for the care and feed of the teams after the written contract had expired. J. J Crable filed an answer denying each and every material allegation in the petition. J. J. Crable & Son filed a separate answer alleging that at the time the contract was entered into between the plaintiff and E. I. Crable the partnership existing between the latter and J. J. Crable had been dissolved by mutual consent, and denying each and every other material allegation of the petition. Replies were...