Lewis v. Fisher

• Decision Date: 12 November 1912
• Parties: LEWIS et al. v. FISHER.
• Court: Missouri Court of Appeals

151 S.W. 172

167 Mo. A. 674

LEWIS et al. v. FISHER.

St. Louis Court of Appeals. Missouri.

November 12, 1912.

1. APPEAL AND ERROR (§ 1011) — REVIEW — FINDINGS.

Finding of fact by the trial court, based on conflicting testimony, is not subject to review.

2. PRINCIPAL AND AGENT (§ 146) — LIABILITY OF AGENT — CONCEALMENT OF AGENCY.

An agent who conceals the fact of his agency and contracts as the ostensible principal

is liable on the contract, just as though he were the real principal.

3. CORPORATIONS (§ 30) — PROMOTER'S CONTRACTS.

Where a promoter of a corporation entered into a contract which was to be assumed by it when incorporated, he was liable on such contract.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by J. W. Lewis and another against A. B. Fisher. From a judgment for plaintiffs, defendant appeals. Affirmed.

Brown & Gallivan, of New Madrid, for appellant. Henry C. Riley, of New Madrid, for respondents.

NORTONI, J.

This is a suit for the purchase price of certain saw timber sold by plaintiffs to defendant. The finding and judgment were for plaintiffs, and defendant prosecutes the appeal. Though the sufficiency of the petition is challenged, the point may be dismissed without comment, except to say that it is obviously good after verdict.

Plaintiffs are partners, and the testimony tends to prove that they sold and delivered to defendant 204 sawlogs, under an agreement whereby they were to recive $9 per thousand feet for cypress and ash, and $6 per thousand feet for other timber. Eighty-six of the logs delivered were of ash and cypress, and contained about 200 feet per log; that is to say, about $154.80 worth of timber. One hundred and eighteen logs, averaging about 200 feet each, consisted of timber other than cypress and ash, and under the contract were valued at $6 per thousand, or a total of $141. The value of the entire lot of timber delivered to defendant, according to plaintiffs' evidence, appears to have been $296.40. On this defendant paid $150, and the suit proceeds for the balance due; however, the recovery allowed was for $109.35 only.

There is no controversy in the case concerning the fact that plaintiffs delivered the logs, and were to receive compensation therefor, as above stated; but defendant contends that he is not personally liable therefor, because the purchase was made by him as the agent of the New Madrid Cooperage Company, and of this fact the plaintiffs were fully advised at the time. Touching this matter, the evidence for plaintiffs tends to prove that the sale was made directly to defendant as though he were dealing for himself, and that no mention whatever was made of the New Madrid Cooperage Company. It is true defendant testified that he stated to plaintiffs he was purchasing the timber for the New Madrid Cooperage Company; but plaintiffs insist to the contrary. Lewis, one of the...