Nagle v. Duncan

• Decision Date: 20 July 1978
• Docket Number: No. 17108,17108
• Citation: 570 S.W.2d 116
• Parties: David J. NAGLE, Appellant, v. Bill DUNCAN, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 116

570 S.W.2d 116

David J. NAGLE, Appellant, v. Bill DUNCAN, Appellee.

No. 17108.

Court of Civil Appeals of Texas, Houston (1st Dist.).

July 20, 1978.

Rehearing Denied Aug. 17, 1978.

David J. Nagle, Houston, for appellant.

Conner & Dreyer, Jerry D. Conner, Houston, for appellee.

COLEMAN, Chief Justice.

This is an appeal from a judgment for the plaintiff in an action for debt. The plaintiff, an official court reporter, sued the defendant, an attorney, for the cost of a transcript of the testimony adduced in a criminal trial which the attorney had ordered for use in an appeal.

As a general rule an agent is not personally liable on contracts made for a disclosed principal, in the absence of his express agreement to be bound. However, the agent of a known principal is not precluded from binding himself personally upon a contract if the agent has substituted his own responsibility for that of his principal, or has pledged his own responsibility in addition to that of his principal. American National Bank v. American Loan & Mortgage Company, 228 S.W. 169 (Tex.Com.App. Sec. A 1921, judgment adopted); Vincent Murphy Chevrolet Company v. Auto Auction, Inc., 413 S.W.2d 474 (Tex.Civ.App. Eastland 1967, writ ref'd n. r. e.).

Although there are some cases for a contrary rule the majority rule has been stated by a commentator as follows:

"Applying the ordinary rule that an agent is not personally liable on a contract, made for his principal where the party with whom he is contracting knows that he is acting for another, and taking the view that an attorney incurring expenses in connection with litigation is ordinarily acting as an agent for the litigant, and that this is usually known to those with whom he deals, many courts have held that in such a situation the attorney is not personally liable for the charge in question, unless he expressly or impliedly assumes special liability therefor." Annotation, Attorney's Personal Liability for Expenses Incurred in Relation to Services for a Client, 15 A.L.R.3rd 531, 536.

In this case the plaintiff was the official court reporter at the trial of Cause No. 373826 entitled State vs. Excell Marks. On February 5th defendant was found guilty of a misdemeanor and by letter dated February 20th, 1974, addressed to the official court reporter, County Criminal Court No. 1, Harris County Court House, and referring to the style of the case above mentioned, a transcript of the proceedings was ordered. The letter read: "Please accept this letter as our request to you to prepare the transcript of the proceedings in the above matter as quickly as possible, in order that we may continue with the appeal of the conviction rendered February 5, 1974." The letter was signed "Law Offices of David J. Nagle" followed by a signature line on which appears the signature of David J. Nagle.

Another letter dated March 13, 1974, addressed to Mr. Bill Duncan, Court Reporter, following the form used in the previous letter, reads: "Enclosed is the firm's check in the amount of $150.00, as a deposit against the costs of the record to be prepared in the above matter.

"Please advise me when the record has been completed of the remaining charges."

There was also introduced into the record a statement dated April 24, 1974, billing Mr. Nagle for the...