Lutz v. Van Heynigen Brokerage Co.

• Decision Date: 26 April 1917
• Docket Number: 1 Div. 944
• Citation: 199 Ala. 620,75 So. 284
• Parties: LUTZ v. VAN HEYNIGEN BROKERAGE CO.
• Court: Alabama Supreme Court

75 So. 284

199 Ala. 620

LUTZ v. VAN HEYNIGEN BROKERAGE CO.

1 Div. 944

Supreme Court of Alabama

April 26, 1917

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Assumpsit by E. Lutz against the Van Heynigen Brokerage Company, a corporation. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The facts and the cause of action are sufficiently stated in the opinion. Count 4 alleges that plaintiff did rely upon said representation and warranty of said defendant as aforesaid and, relying upon said representation and warranty, did make and enter into said charter party purporting to bind the owners of the schooner Goldfield. Plaintiff avers said defendant was without authority from said owners of said steamer to make and enter upon said charter party for and on behalf of said owners, and that the action of defendant in executing said charter party purporting to bind said owners of the steamer was wholly unwarranted by and without authority from said owner. And plaintiff avers that by reason of said representation and warranty of said defendant as aforesaid, being untrue as aforesaid, said defendant has breached his said warranty with said plaintiff as aforesaid. Count 7 is as follows:

Defendant, acting by and through John A. Merritt & Co., its duly authorized agent, executed with plaintiff a charter party, a copy of which is attached, marked Exhibit A, hereby referred to and made a part hereof. Defendant was not at the time of making said charter party the agent of or authorized to represent the owners of the majority interest in said steamer Goldfield. After the execution of said charter party said schooner Goldfield proceeded to the port of Mobile, and was there docked. Thereafter, and on, to wit, February 20 1915, the schooner left the said dock at the port of Mobile, and plaintiff thereupon demanded of defendant that said schooner enter upon the performance of said charter party according to its terms, but defendant failed to comply with said demand, and the owners of said schooner repudiated the contract, embraced in said charter party, and denied defendant's authority to bind them thereby, and refused to permit said schooner Goldfield to perform the said charter. The price named in said charter party for the use of said vessel was a fair and reasonable value of such use at the time said charter party was entered into, but thereafterwards ocean freights of all kind advanced rapidly, and at the time of aforesaid default and failure in complying with said charter party ocean freights had greatly advanced, and the loss and damage to plaintiff by reason of being deprived of the use of said vessel under the terms of said charter party amounted to a large sum, to wit, $15,000. Wherefore plaintiff sues.

Plea A is as follows:

One Erb owned forty-seven sixty-fourths interest in said schooner and died intestate, a short time before the charter party referred to in said count was entered into, and no person had qualified as executor or administrator of the estate of said Erb. After the death of said Erb, his widow claimed the right, by virtue of being such widow, to manage and control her said deceased husband's interest in said schooner, and to employ or join in the employment of said schooner to the same extent that her husband would have been authorized to employ, or join in the employment of said schooner had he still lived; and the estate of said Erb, deceased, employed and authorized defendant as their agent or broker to obtain employment for said schooner, and to engage, make, and enter into an agreement therefor upon the terms set out in the charter party referred to in said count; and defendant under said employment and authority, and no other, and as broker or agent of said parties, and for and on their behalf and not for and on its own behalf, made and entered into the contract or charter party referred to in said count. At and before the time of the execution of said charter party, plaintiff knew that said Erb was dead, and that at the time of his death he owned a large interest in the schooner, and that his widow claimed the right, by virtue of being such widow, to manage and control the employment of said schooner to the same extent that said Erb had the right to manage and control it during his lifetime, and the plaintiff knew that defendant in negotiating and agreeing to the terms of said contract was negotiating and agreeing thereto by authority from and on behalf of said widow and the owners of said schooner other than the estate of said Erb, and not for and on behalf of itself, and knew its only authority for such negotiating and agreement was derived from said widow and owners, and with said knowledge plaintiff entered into said agreement and executed said contract as an agreement or contract between itself and the owners of said schooner, treating said Mrs. Erb as one of such owners, and not as an agreement with defendant.

Stevens, McCorvey & McLeod and D.B. Goode, all of Mobile, for appellant.

Gregory L. Smith & Son, of Mobile, for appellee.

McCLELLAN J.

The appellant and the appellee were the respective parties plaintiff and defendant in the court below. The verdict and judgment for the defendant was immediately consequent upon the action of the court in giving the general affirmative charge for the defendant, at its request.

The plaintiff (appellant) would fix liability on the defendant (appellee) in consequence of a charter party for the schooner Goldfield executed, as will later appear, to the plaintiff as charterer. The first three counts of the complaint proceed on the theory that the defendant bound itself by the contract or charter--was the obligor therein--and are, hence, counts on the contract. The fourth count declares on the breach of a warranty by the defendant, in that, contrary to the defendant's assumption, the defendant was not authorized as agent of the owners of the vessel to engage as, through the charter party of November 2, 1914, it purported to do for the owners of the vessel.

On and prior to the 18th of October, 1914, the schooner Goldfield was owned by the following tenants in common, in the respective proportions noted just after their names: Captain Erb, forty-seven sixty-fourths; Van Heynigen Brokerage Company, five sixty-fourths; E.K. Ladd, two sixty-fourths George Dunlap, one sixty-fourth; Wrightson, five sixty-fourths; Roll, etc., Chandlery, three sixty-fourths; and Martin, one sixty-fourth. The plaintiff was a lumber merchant, and to serve his trade he chartered vessels to carry lumber to various ports. His authorized agent, Diaz, represented him in negotiating and executing the charter of November 2, 1914, of the schooner Goldfield. The appellee was a ship broker at Mobile. To state an unescapable conclusion of fact and law, John A. Merritt & Co., of Pensacola, also engaged in that character of brokerage, represented the appellee in the negotiation and execution of the charter party in question. Captain Erb, who owned, as appears, a controlling interest in the schooner, died on October 18, 1914, leaving a widow and three minor children. Some months after the execution of the charter party and an addenda made thereto by an agreement of the appellee and appellant, the fact was recognized that the charter party, executed after Captain Erb's death, was ineffectual to bind the vessel, Erb's estate having the controlling interest therein. The vessel was, hence, not made available to the charterer. The right to control the vessel's employment and service was in Captain Erb up to his death, and that seems to have been the recognized practice. The Orleans v. Phoebus, 11 Peters (U.S.) 175, 183, 9 L.Ed. 677; 36 Cyc. pp. 31, 32. The effort of the widow of Erb to authorize the appellee to create obligations through the charter of the vessel to the appellant was vain, wholly ineffectual. If an agent in the execution of a contract "disclose his principal, make it appear on the face of the paper that it is the contract of the principal, and sign it as agent, of course the principal is bound, the undertaking being within the agency, and the agent is not. On the other hand, if a principal is not disclosed on the face of the paper, and the party signing describes himself as agent, trustee, or the like, without more (italics supplied), it is the obligation alone of the party whose name is set to the paper, the superadded word or words being mere descriptio personae to be disregarded as surplusage, and evidence cannot be received to show that he was, in fact, the agent or trustee or the like of an undisclosed principal, *** and that the obligation was that of such other person. And again, if the paper discloses the names of two parties, either of whom may be the obligor, and it is doubtful from the whole instrument which of the two is intended to be bound, and the signer describes himself as agent, *** parol evidence is admissible to show that it is the obligation of the party named in but not signing the paper." Richmond Machine Works v. Moragne, 119 Ala. 80, 24 So. 834, and cases therein cited; Roney v. Winter, 37 Ala. 277. Where the only suggestion that the signator is acting in a representative capacity exists in the use, after the signature only, of the words "agent," "trustee," or the like, the contract is regarded, prima facie, as imposing a personal liability on the signator alone, and the words stated, following the signature, are regarded as descriptio personae only. Richmond Machine Works v. Moragne, supra; Briel v. Bank, 172 Ala. 475, 55 So. 808. Of course, in such circumstances the other party may implead the signator for a breach of the contract; the contract, under such circumstances, being on its face the obligation of the signator only....