Opinion
Opinion filed May 7, 1929.
1. — Appellate Practice — Motion to Dismiss — No Separate Assignment of Errors. Where the sole point made by appellant on appeal was that the court erred in sustaining defendant's demurrer and this was properly made under appellant's "points and authorities," respondent's motion to dismiss the appeal on the ground that appellant had not complied with the rules of the Court of Appeals in that its brief did not set out any specific assignments of error, was overruled.
2. — Principal and Agent — Undisclosed Principal — Evidence — Liability. In an action to recover for certain work and labor done and materials furnished wherein plaintiff sought to charge defendant as undisclosed principal of party with whom plaintiff entered into contract and extended credit, evidence held not to present a question for the jury in view of evidence that plaintiff, with a complete knowledge that defendant was principal, entered into the contract and extended credit to such party, and under such circumstances plaintiff cannot hold defendant as undisclosed principal.
Appeal from the Circuit Court of the City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.
AFFIRMED.
Abbott, Fauntleroy, Cullen Edwards for appellant.
(1) The court erred in sustaining defendant's demurrer to the evidence and in nonsuiting plaintiff because: (a) On a demurrer to the evidence the court must indulge every inference of fact in favor of the party offering the evidence which a jury might indulge with any decree of propriety. And the plaintiff is entitled to the benefit of every fact in evidence favorable to the contention of plaintiff and of every inference therefrom, and where the undisputed evidence is susceptible of two inferences the court must submit the question to the jury. Conley v. Motor Car Co., 204 Mo. App. 50; Steffens v. Fisher, 161 Mo. App. 392; Dye v. N.Y. Life Ins. Co., 227 S.W. 1066; Shirvin v. McKamey, 237 S.W. 859; Booker v. Railroad, 144 Mo. App. 282; Knapp v. Hanley, 108 Mo. App. 360; Bennett v. Railroad, 242 Mo. 131; Heine v. Railroad, 129 S.W. 421. (b) In order to render an election binding upon the third person he must at the time of electing have full knowledge of all the facts material to his rights and to the liabilities of the several parties, including not only the name of the principal, but the fact of the agency. 2 Corpus Juris 845; Raymond v. Crown Eagle Mills, 2 Metc. 319; Knickerbocker Biscuit Co. v. Devoe, 142 N.Y.S. 1035; Dages v. Melrose Iron Co., 140 N.Y.S. 392; Remmel v. Townsend, 31 N.Y.S. 985; Cobb v. Knapp, 71 N.Y. 348, 27 Am. Rep. 51; Brown v. Reiman, 62 N.Y.S. 663; De Remer v. Brown, 59 N.E. 129; Mahoney v. Kent, 28 N.Y.S. 19; Sweeney v. Douglas Copper Co., 134 N.Y.S. 247; Coleman v. First Nat. Bank, 53 N.Y. 388; Ferris v. Thaw, 72 Mo. 447; Banjo v. Wacker, 251 S.W. 457; Greenberg v. Palmieri, 58 A. 297; Baldwin v. Garrett, 36 S.E. 966; Dameron v. Quick, 82 S.E. 709. (c) It is the duty of the agent to disclose the full facts of the agency, and third party's right of recovery does not depend upon the diligence he uses in ascertaining the true facts. He must have full and actual knowledge of the facts of the agency. Banjo v. Wacker, 251 S.W. 457; Raymond v. Crown Eagle Mills, 2 Metc. 319; De Remer v. Brown, 59 N.E. 129; Baldwin v. Garrett, 36 S.E. 966. (d) The question of whether or not there was a disclosure of the principal by the agent is a question peculiarly within the province of the jury. Haskett v. Ussell, 181 Mo. App. 840; Lewis v. Fisher, 167 Mo. App. 674; Raymond v. Crown Eagle Mills, 2 Metc. 319; Cobb v. Knapp, 71 N.Y. 348, 27 Am. Rep. 51.
Greensfelder, Rosenberger Grand for respondent.
(1) Appellant's appeal should be dismissed because it is not in the form required by statute and the rules of this court. Sec. 1511, R.S. 1919; Rules 18 21 of the Rules of Practice in the St. Louis Court of Appeals; Pfotenhauer et al. v. Ridgeway, 271 S.W. 50; Gehbauer v. J. Hahn Bakery Co., 285 S.W. 170; Leach v. G.F. Mosher Real Estate Co., 286 S.W. 134; Coe et al. v. Greenley, 246 S.W. 908; Lanphear et al. v. Masonic etc., 263 S.W. 146. (2) This court cannot consider testimony which was offered by appellant, but which was objected to by counsel for respondent and the objection to such evidence was sustained by the trial court because there is no assignment of error in appellant's statement, brief and argument as to the exclusion of this testimony by the court. Mahmet v. American Radiator Co., 294 S.W. 1014; Barrie v. Richmond Cemetery, 285 S.W. 103; Flach v. Ball, 240 S.W. 469. (3) Where a party does work under an agreement with an agent and solely on his credit and with knowledge that at the time he was acting as an agent and also with knowledge as to whom his principal was, he cannot hold the principal liable. Jablon et al. v. Traynor et al., 135 N.Y.S. 545; Story on Agency (9 Ed.), sec. 291, p. 356; Raymond v. Crown Eagle Mills, 2 Metc. 319; Johnson v. Armstrong, 83 Tex. 325, 29 Am. St. Rep. 648; Realty Co. v. Markham, 163 Mo. App. 314; Taintor v. Prendergast, 38 Am. Dec. 618.
This is an action brought by the Jahncke Dry Docks, Inc., of New Orleans, Louisiana, against the McKelvey Construction Company of St. Louis, in which plaintiff seeks to charge the McKelvey Construction Company for certain work and labor done, and materials furnished, in the construction of a conveyor in New Orleans for the United Fruit Company. In accordance with the allegations of the petition the evidence discloses that an agreement was entered into between the Benjamin H. Alvey Corporation of St. Louis, and the plaintiff, by the terms of which, plaintiff was to proceed with the erection of a conveyor to be used by the United Fruit Company, according to plans and specifications furnished by the Alvey Corporation, for the sum of $2550. The plaintiff sold and delivered certain goods, rendered certain services, and incurred expenses amounting to about two thousand dollars over and above the original contract. The original $2550 was paid and there is no dispute about that.
This suit seeks to charge the McKelvey Construction Company with the balance, as the undisclosed principal of the Alvey Corporation. The testimony of the superintendent of the plaintiff company showed that he met a Mr. Haley, who represented the Alvey Corporation, in New Orleans, and after inspecting the plans and specifications he submitted a bid to Mr. Haley, and an estimate was sent to the Alvey Corporation, and was accepted by the same. This superintendent testified to the following conversation with Mr. Haley at the time he entered into the contract.
"Q. What arrangement, if any, did Mr. Haley make for the payment of this work? A. In our general course of business, before proceeding with a job I always refer the matter to our auditor or secretary to have him pass on same before proceeding with the work. In this particular instance I inquired of Mr. Haley who would be responsible for the payment for the work done. He told me that all bills in connection with the work would be paid by the McKelvey Construction Company of St. Louis.
"Q. Did Mr. Haley explain to you, yourself, or give any reasons why the McKelvey Construction Company would pay this bill? A. Mr. Haley explained to me that the McKelvey Construction Company was a part of and was financing the Alvey Construction Company.
"Q. Did Mr. Haley make any other statements to you concerning the relations between the Benjamin H. Alvey Corporation and the McKelvey Construction Company? A. I think Mr. Haley told me that Mr. McKelvey himself had sent him down on this particular job.
"Q. Did he explain to you anything about the relations between the two companies? If he did, you can say so. A. No other than that he was sent here by McKelvey and that the McKelvey Construction Company was a part of the Alvey Corporation and were financially responsible for the work."
This superintendent testified further that he had a conversation with Mr. Alvey, president of the Alvey Corporation. This testimony as brought out by examination is as follows:
"Q. Did you have any discussion with Mr. Alvey as to the relation between the Alvey Corporation and the McKelvey Construction Company? Mr. Metcalfe (resuming): A. I had a conversation with Mr. Alvey concerning the relationship of the Benj. H. Alvey Company and the McKelvey Construction Company, but, as previously stated, not with Mr. Haley. Mr. Alvey informed me that previous to this time that be had organized a company and performed work similar to this for several years, afterwards disposing of same and entering into an agreement not to go into this particular business again for a certain number of years, but on the expiration of this agreement he and the McKelvey Construction Company organized a company in the office of the McKelvey Construction Company to be known as the Benj. H. Alvey Corporation, and the prime object of the company was to manufacture and operate unloaders, conveyors, transmission machinery, similar to the ones manufactured when he was in business previous to this time.
"Q. Mr. Donaldson, were any of these extras furnished at the request of Mr. Alvey himself when here? A. Yes.
"Q. And these conversations you had, were they contemporaneous at the time he ordered these extras? A. That was previous to and during the ordering of these extras.
"Q. Now did Mr. Alvey tell you anything of the reasons that they were here operating under the name of Benj. H. Alvey Corporation in this instance? A. Mr. Alvey told me that he was well known throughout the whole country as a man who had invented and installed numerous loading and conveying machines throughout the whole country, and that his reputation along this line of work was well known; that he had made numerous inventions, manufactured numerous machines and installed same, lowering handling costs in several plants, naming particular places that were handling package freight, bottling works and the handling of small commodities."
When the work was completed a letter was written to the McKelvey Construction Company asking for payment of the balance due. In reply to this letter the McKelvey Construction Company, through its president, advised plaintiff that it was in no way responsible for the obligations of the Alvey Corporation, that it did at times loan this Corporation, and that such Corporation assigned to it the proceeds of the contract with the United Fruit Company. The letter further advised plaintiff that the Alvey Corporation was still indebted to the McKelvey Company for monies advanced, and that it was in the same position that plaintiff was.
The evidence also disclosed that McKelvey had given Haley the money with which to commence the work. There is no argument or question as to the correctness of the amount in dispute.
At the close of the case the court announced its intention of sustaining a demurrer to the plaintiff's evidence, and plaintiff took an involuntary nonsuit with leave to move to set the same aside. The motion to set aside the involuntary nonsuit was overruled, and plaintiff has appealed.
The sole question raised here on appeal is the propriety of the court's action in sustaining plaintiff's demurrer to the evidence. The contention of the plaintiff is that it was entitled to have its cause submitted to the jury upon the theory that the McKelvey Construction Company was liable as the undisclosed principal. The defendant's theory is that the plaintiff had full knowledge as to who the principal was, and chose to hold the agent, and, therefore, they cannot hold the principal liable. Respondent also contends that this appears as a matter of law.
There is a motion filed here to dismiss this appeal on the ground that plaintiff has not complied with the rules of this court, in that its brief does not set out any specific assignments of error. This motion was taken with the case. However, as the sole point made by plaintiff on appeal is that the court erred in sustaining plaintiff's demurrer, there is only one point raised here, and as this is properly made under plaintiff's "Points and Authorities" this motion to dismiss is overruled. [Amick v. Empire Trust Co. (Mo.), 296 S.W. 798.]
The question, therefore, presented on appeal, is whether or not it was a question for the jury as to the undisclosed principal, or whether, according to respondent's theory, the principal was disclosed and plaintiff sought to hold the agent, and is, therefore, barred from recovery.
The plaintiff company extended credit to the Alvey Corporation, but it contends that the evidence does not disclose the relationship of principal and agent at the time of the signing of the contract, and that plaintiff did not have full and actual knowledge of the situation of the parties, and the facts of the agency, and, therefore, it was a question for the jury as to defendant's liability. There must, of course, be knowledge on the part of the vendor of the relationship of the parties and their interest in the matter, to exonerate the principal by giving credit to the agent, but if such knowledge is obtained, and the vendor chooses to give credit to the agent as his debtor, he discharges the liability of the principal.
An examination of this record leads us to the conclusion that the trial court did not err in refusing to set aside the involuntary nonsuit. We think the evidence discloses a situation where the plaintiff had complete knowledge that the Alvey Corporation was merely a part of, and representing the McKelvey Construction Company. The testimony of the representative of the plaintiff company shows that before it proceeded with a job it always referred the matter to the auditor or secretary. He also testified that he had received the information from Mr. Haley, and with a complete knowledge of all the facts, plaintiff entered into a constract and extended credit to the Alvey Corporation, and under such circumstances, it cannot hold the McKelvey Construction Company as undisclosed principal. This is unquestionably the law, and, therefore, there was no error in the trial court's action. The judgment of the circuit court is accordingly affirmed.
Becker, J., concurs; Haid, P.J., not sitting.