Murphy v. Hutchinson

• Decision Date: 25 January 1909
• Citation: 93 Miss. 643,48 So. 178
• Court: Mississippi Supreme Court
• Parties: ROBERT J. MURPHY v. WILLIAM NELSON HUTCHINSON

48 So. 178

93 Miss. 643

ROBERT J. MURPHY v. WILLIAM NELSON HUTCHINSON

Supreme Court of Mississippi

January 25, 1909

October 1908

FROM the circuit court of Lowndes county, HON. ROBERT F. COCHRAN Judge.

Murphy appellant, was plaintiff in the court below; Hutchinson appellee, was defendant there. From a judgment in defendant's favor, predicated of a peremptory instruction, plaintiff appealed to the supreme court.

The plaintiff was a practicing physician and, at the employment of defendant, nothing being said as to who would pay plaintiff, rendered professional services to laborers on the farm of defendant's mother. The farm was managed by defendant for his mother and as her agent. The suit, begun in a justice of the peace court and appealed to the circuit court, was based on an open account for the professional services. It appeared upon the trial that plaintiff had previously sued the mother, Mrs. Elonia Hutchinson, on the same account and that judgment was rendered in said suit on the merits for the defendant. The facts are further stated in the opinion of the court.

Affirmed.

James T. Harrison and McWillie & Thompson, for appellant.

Z. P. Landrum, for appellee.

OPINION

FLETCHER, J.

The peremptory instruction in this case was manifestly based upon the theory that Dr. Murphy, being free to sue either Mrs. Hutchinson, the principal, or W. N. Hutchinson, the agent, elected to hold the principal, and, having prosecuted a suit against Mrs. Hutchinson to final judgment, was estopped to proceed against the agent, though unsuccessful in the first action. This question involves the doctrine of election of remedies, a subject on which there is considerable conflict in the authorities.

It should be stated that in this case Dr. Murphy testifies that at the time the medical services were rendered he had no knowledge that W. N. Hutchinson was acting as his mother's agent, but that the credit was extended to Hutchinson as the principal debtor. This accounts for the admitted fact that the account was charged to Hutchinson, and, of course, since Dr. Murphy was dealing with the agent of an undisclosed principal, the agent could be held to personal liability if the creditor so desires. It is equally well settled that Dr. Murphy, after ascertaining that young Hutchinson was acting for his mother, could elect to hold the principal, even though, at the time the debt was made, there was no disclosure of the agency. Keeping these elementary principles in mind, we observe that Dr. Murphy made out his account against W. N. Hutchinson and turned the same over to his attorney for collection. The attorney advised Murphy that Mrs. Hutchinson was the owner of the plantation, and that W. N. Hutchinson was only her managing agent, and that Mrs. Hutchinson was in law responsible for the debt. The attorney states that, since he had his remedy against either party, he concluded to proceed against Mrs. Hutchinson as being the more solvent of the two, which was accordingly done. In this trial W. N. Hutchinson was subpoenaed as a witness for the plaintiff, and testified that he was acting as his mother's agent. It is therefore clear that Dr. Murphy was correctly informed as to the facts and properly advised as to the law at the time he instituted his action against the principal, Mrs. Hutchinson.

Dr. Murphy was defeated in this suit, there being an adverse verdict of the jury in the justice's court. We have no possible way of knowing what considerations were influential with the jury; but, giving effect to all the presumptions that the law attaches to the action of every court, the plaintiff could not have been defeated because he had sued the wrong party, since the agency of W. N. Hutchinson was admitted, and there can be no dispute as to the principal's liability for the contracts of the agent, made in reference to the business which the agent was employed to perform. The presumption must therefore be indulged that Dr. Murphy was defeated in his suit because the jury was not satisfied as to the merit of plaintiff's demand, considered entirely apart from any question of which party was the responsible one. After this first suit was finally disposed of, Dr. Murphy brings a second suit upon the identical account litigated in the first action, but against W. N. Hutchinson, the agent, relying upon the fact that he had made the account without disclosing the agency. We are therefore confronted with the question whether a creditor, free to sue either principal or agent, who elects to proceed against the principal, with full and correct knowledge both of the facts and the law governing his case, can, after prosecuting his case to judgment, bring another suit against the agent upon the identical account first sued on.

We are fully aware of the fact that our own court has been slow to give effect to the doctrine, elsewhere widely accepted, that a person with an unredressed grievance, and with two inconsistent courses open to him, will be held to have finally abandoned one of these courses merely because he has entered upon another. The doctrine, so far as Mississippi is concerned, has been carefully limited and guarded. Perhaps the fullest consideration of the question to be found in our reports is found in the opinion of Judge Campbell in response to the suggestion of error in Madden v. Louisville, etc., R. Co., 66 Miss. 258, 6 So. 181. This opinion, although distinctly stating that while the doctrine of election is sound, and is to be recognized and applied by our courts in proper cases, yet it must not be applied when the party sought to be bound by the election acts without full knowledge of his legal rights as determined by the application of correct principles of law to a state of facts of which he has full knowledge. So in Conn v. Bernheimer, 67 Miss. 498, 7 So. 345, it was held that, because appellee had mistakenly instituted an action of replevin in a case where that form of action would not lie, he was not precluded from prosecuting a proper action in another forum. So in Tucker v. Wilson, 68 Miss. 693, 9 So. 898, the doctrine was not applied, for the manifest reason that complainants in their first suit had no proper conception of the course best adapted to preserve their rights. These cases do not purport to deny the application of the doctrine to proper cases, but do so limit and restrict its application that it can prevail only when the electing party acts with full knowledge of his rights.

We cannot resist the conclusion that Dr. Murphy so acted when he brought his suit against Mrs. Hutchinson, the principal. We have shown that he was told of the agency and correctly advised as to the law governing such cases. Since our own eases do not deal with this precise state of case let us look a little to the authorities elsewhere. Mr. Wharton thus stales the rule: "In order to relieve the principal, there must be something equivalent to an election not to charge the principal; and whether there is such an election to a question of fact, which is not determined by charging the agent after the knowledge of the principal. As will presently be seen, after the agent has been sued to judgment, the right to revert to the principal by the technical rules of the English common law, is lost. But an affidavit of proof in bankruptcy, filed, but not further proceeded upon, and countermanded, is...