Perhach v. Bender

• Decision Date: 26 October 1962
• Docket Number: No. 9777,9777
• Citation: 147 So.2d 18
• Parties: Allen A. PERHACH, d/b/a Lake Engineering, Plaintiff-Appellee, v. B. BENDER, d/b/a Redneb Pipe Company, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 18

147 So.2d 18

Allen A. PERHACH, d/b/a Lake Engineering, Plaintiff-Appellee, v.B. BENDER, d/b/a Redneb Pipe Company, Defendant-Appellant.

No. 9777.

Court of Appeal of Louisiana, Second Circuit.

Oct. 26, 1962.

Rehearing Denied Nov. 29, 1962.

Certiorari Denied Jan. 14, 1963.

Wilkinson, Lewis, Madison & Woods, Shreveport, for appellant.

Love & Rigby, Shreveport, for appellee.

Before GLADNEY, AYRES and BOLIN, JJ.

GLADNEY, Judge.

Plaintiff instituted this suit against the defendant, B. Bender, doing business as Redneb Pipe Company, for the purpose of collecting $1,911.00 for welding services.Bender defended on the ground that Redneb Pipe Company was a corporation, that he had not personally obligated himself to plaintiff nor conducted business in his individual name, and that the obligation sued on was made solely for the benefit of the corporation.Upon these issues the case was tried, resulting in judgment being rendered in favor of plaintiff.The court held that the defendant incurred personal liability for the obligation to plaintiff for not communicating the fact that he was the agent of the corporation, which disclosure should have been made at the time the contract was entered into between the plaintiff and the defendant.The defendant has appealed from the decision.

The evidence discloses that B. Bender made a personal call upon plaintiff and entered into a contract requiring welding services, the cost of which is the subject of this suit.It further appears that all dealings in connection with the transaction between plaintiff and defendant were participated in by the defendant.The record does not present any evidence corroborative of the testimony of Bender that plaintiff was informed of the corporate capacity of Redneb Pipe Company.

The Redneb Pipe Company is shown to have been a corporation organized under the laws of Delaware and at the time of the transaction between plaintiff and defendant it was authorized to do business within the State of Louisiana, Ohio and other states.Its principal office was in Shreveport, where it maintained a bank account at the Pioneer Bank & Trust Company.It appears that the company was either wholly or substantially owned by B. Bender and its name was derived by spelling 'Bender' backward.Bender is designated in its charter as its president, and all of its operations appear to have been completely subject to his management.During July of 1954, the Redneb Pipe Company contracted with the Ohio Oil Company for the purchase of a large amount of pipe, which it intended to resell.The necessity of welding pit holes in the pipe brought about the confection of the contract herein sued upon.

The record contains testimony by Perhach and Bender.Perhach testified Bender told him that he owned the Redneb Pipe Company and that Redneb was 'Bender' spelled backward; that he believed the defendant was acting for himself personally, and that he, plaintiff, had no reason to believe that Redneb Pipe Company was a corporation, and made no inquiries about its true status.Plaintiff was presented with Bender's card reading in large black type 'REDNEB PIPE CO.'Also appearing on the card was the name 'B. BENDER'.Bender signed the shop order and testified that he then told plaintiffhe was the company's president.During the progress of the welding work, ten invoices were addressed to Redneb Pipe Company.The first five of these were paid by checks on Redneb's account with the Pioneer Bank & Trust Company.Printed on these checks is the name 'REDNEB PIPE CO.'The checks were signed by B. Bender, two of which were co-signed by Rosalie Nasser and three were co-signed by Taylor O'Hearn.The official capacities of Nasser and O'Hearn are not indicated on the checks.The corporation became insolvent during the progress of the work and the last five invoices, amounting to $1,911.00 were not paid.

In complaining of the judgment of the trial court, counsel for appellant charges error in failing to give proper weight to the documentary evidence in the record and to the testimony of the defendant; in placing the burden of proof on the defendant, instead of the plaintiff; in failing to recognize that the contract was entered into in the name of the corporation, Redneb Pipe Company; and in applying principles of law applicable only where the contract was entered into in the name of an agent for an undisclosed principal.

The important issue is whether, as a matter of fact, Bender disclosed to plaintiff at the time the contract was formed, that he was acting on behalf of the corporation as its agent.Proof of this fact must be found in the testimony of Perhach and Bender.The reasons for the judgment of the trial court reflect that the trial judge carefully examined the testimony of each of these witnesses and concluded Bender had not only failed to disclose to Perhach that the engagement was for a corporation, but gave the impression that he was the sole owner of Redneb Pipe Company.Such evidence, of course, would be sufficient to justify Perhach in believing that Bender was contracting as an individual and that Redneb Pipe Company was simply a trade name.

This court had occasion recently to consider the question of the personal liability of one who has incurred indebtedness without disclosing his agency.In Hayes v. Claterbough, La.App., 140 So.2d 737(2d Cir.1962)we commented:

'A well recognized general legal principle is that an agent...