Mississippi Valley Const. Co. v. Chas. T. Abeles & Co.

• Decision Date: 28 September 1908
• Citation: 112 S.W. 894
• Parties: MISSISSIPPI VALLEY CONST. CO. et al. v. CHAS. T. ABELES & CO. et al.
• Court: Arkansas Supreme Court

112 S.W. 894

MISSISSIPPI VALLEY CONST. CO. et al. v. CHAS. T. ABELES & CO. et al.

Supreme Court of Arkansas.

September 28, 1908.

Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

Action by Chas. T. Abeles & Co. against M. F. Bain and others. Judgment for plaintiffs against the Mississippi Valley Construction Company and Zeb Ward, and they appeal. Affirmed.

The authorities referred to in the opinion as cited in appellee's brief on the question of undisclosed principal were as follows: Ford v. Williams, 62 U. S. 287, 16 L. Ed. 36, and note; Jones v. New York Guaranty & Insurance Co., 101 U. S. 622, 25 L. Ed. 1030; Wheeler v. McGuire, 2 L. R. A. 812, note; Mechem on Agency, §§ 699, 701; 1 Am. & Eng. Ency. of Law (1st Ed.) 416, note 3; Meeker v. Claghorn, 44 N. Y. 349; Foster v. Persch, 68 N. Y. 400; Cobb v. Knapp, 71 N. Y. 348, 27 Am. Rep. 51; Mattlage v. Poole, 15 Hun (N. Y.) 556; Garard v. Moody, 48 Ga. 96; Ferry v. Moore, 18 Ill. App. 135.

Appellee sued on M. F. Bain in the justice court on account for $114.24. Afterwards, on motion of appellees, appellants were made parties defendant. On the trial day in the justice court, the cause was dismissed as to Bain, and judgment by default was taken against appellants. They appealed to the circuit court.

The cause was tried by jury in the circuit court upon the following undisputed evidence: "The Mississippi Valley Construction Company made a contract with one Frank to erect for him a building and furnish all the materials. That one Bain was to have half of the profits, and was employed by said Mississippi Valley Construction Company to superintend the erection of said building and to purchase the material for the same. That the president of the company, Zeb Ward, instructed him to buy all of the material from the Rock Creek Lumber Company and from no one else, but there was a part of the material needed for the erection of said building that said Bain could not get from the Rock Creek Lumber Company, and he bought this from the plaintiffs, Chas. T. Abeles & Co., and that this lumber is the bill sued on herein. That all of said lumber was used in erecting said building, and the defendant, the Mississippi Valley Construction Company, received pay from said Frank for the whole contract price of said building, in which the lumber and building materials shown on the account sued on were used and that they have never paid the plaintiffs for the same, and that the price charged by plaintiff in said account for said materials is reasonable. That there was a sign on the building which the defendant the Mississippi Valley Construction Company was erecting which had on it in large letters: `Contractors: Mississippi Valley Construction Company and Bain.' That the president of the defendant company, Zeb Ward, knew that this sign was on the building. That said Ward testified that he did not know the material bought of the plaintiff was used in said building till it had been so used, when the bill was sent to him, and he refused to pay it. The evidence showed that all the material shown on the bill sued on was purchased by Bain, and all was charged to him on the books of the plaintiff as it was delivered, and was not charged on their books to either defendant. And at first the plaintiffs brought this suit against Bain alone, when he told the plaintiffs that the Mississippi Valley Construction Company owed the bill, and not himself. Then the plaintiff made out the bill against the defendants the construction company and said Ward, and made them parties to the suit, using the same account, but before the trial in the circuit court the plaintiff made out its bill against the defendants the construction company and said Ward, which bill was duly verified, and filed and may be considered as copied herein as the same has been lost. The materials sued for were used in said building, and were necessary for its completion, or other like material, and has not been paid for. It was admitted by the defendants that the Mississippi Valley Construction Company is a corporation organized under the laws of Arkansas in 1901, and has been doing business in this state ever since, and that the president, Zeb Ward, was elected its president at its organization, and is now its president and has been continuously since it was incorporated, and that no annual statement of said corporation signed by its president and the secretary or by any one else has ever at any time been filed with the county clerk of Pulaski county, Ark., which is the domicile of said company. That said Ward was absent in Texas most of the time during the construction of said building, and he left Bain as superintendent of the defendant company to construct and complete the building under the contract with Frank. That Bain had a half interest in the profits of erecting the building. That Ward was here about the time the building was finished, and the material sued on in the account of the plaintiff was purchased by...