De Remer v. . Brown

Martin, J. When the discussion of the various reasons assigned by the courts below for their action in this case is omitted, and our examination is confined to the only question before us, which is the correctness of the decision from which this appeal is taken, the case is a plain and simple one, and the questions involved are not difficult of solution. *416 The agreement which is the basis of this action, and upon which the plaintiff has recovered, was between the plaintiff’s firm upon one hand, and the defendants’ firm upon the other. The former thereby agreed to perform and furnish certain work and materials according to specifications which were a part of the contract, and the defendants agreed to pay for such work and materials the prices or sum mentioned therein. At the time of the trial there was due the plaintiff thereon the amount for which a verdict was directed. The contract was in writing, and was between J. B. De Remer & Co. as parties of the first part, and Willard Brown and Charles W. Wells, doing business under the firm name of Brown & Wells, as parties of the second part. It was signed on behalf of the plaintiff’s firm by one of its members, and by the defendants Brown & Wells by Edwin H. Kellogg, their agent. That Kellogg was authorized by the defendants to make and sign this contract for them and in their name, there can be no doubt. Express authority to thus bind them was not only given him by their letter, but when the agreement was executed it was immediately sent to the defendants and examined by them, and they then expressly approved of it as “ perfect.” Thus, it is manifest that the contract was made 'in the name of the defendants, and signed for them at their request by their duly constituted agent. Therefore, in the further discussion of this case, it must be assumed that they were parties to the contract as principals and not as agents. The contention of the appellants is that they were the agents for some undisclosed principal or syndicate, or for the promoters of the undertaking who were intending to form a corporation to build the ditch or canal, and, hence, they are not liable, although the contract was made in their names and with no knowledge upon the part of the plaintiff’s firm of any principal other than the defendants. The language of the written agreement was not only plain and unambiguous as to who were the principals and who was to pay the plaintiff’s firm for the labor and materials furnished, but the other proof in the case shows quite conclusively that the defendants *417 intended to become such principals. This is shown by their letter of January 6, 1891, not only, by the positive direction therein to have the contracts made in their name, but also by the statement that when the company mentioned was in legal shape, the contract could be assigned to it. The defendants were lawyers and well knew that if they were agents for a company, no assignment to it would be required. Indeed, the company to which that letter referred was never in legal shape to take such assignment. Besides, any assignment to it, or any other principal unknown to the plaintiff’s firm, could have in no way affected their rights. To now hold that the defendants can be relieved from the responsibility they thus plainly and intentionally assumed by claiming or proving by parol that they intended to transfer their contract to, or that they acted for, some undisclosed principal not mentioned in the agreement nor disclosed to them, would be at war with every established principle of the law of agency, as well as with the principles of equity and natural justice. That an agent may contract in his own personal capacity and be thus bound to the persons with whom the contract is made, is elementary. - It is competent for an agent, although fully authorized to bind his principal, to pledge his own personal responsibility instead. Such a personal undertaking is not necessarily inconsistent with his character as an agent, and when he has so bound himself' he will be held liable. ' If the promise is in writing, its construction and effect are" ordinarily questions of law to be determined by the court. In construing such a contract, the intent of the parties is to be ascertained from the language employed, unless there is some ambiguity in a material part of the contract, the explanation of which-requires proof of the attendant facts and circumstances. In this case there is no ambiguity or uncertainty in the language employed, so far as it bears on the intent of the defendants to become principals in the contract made by them. That intent is disclosed by the plain language of the agreement, and is in entire harmony with every act of the parties. While, in some portions of the specifications the word “ company ” was used, *418 still, the use of that word created no ambiguity which would permit parol evidence to contradict the positive and clear terms of the contract, as to who were the contracting parties with the plaintiff’s firm, or to contradict the provisions of the contract to the effect that the defendants were to pay for the work and material which were to be furnished by the plaintiff’s firm. Therefore, the appellants’ claim that because in the specifications it was provided that a percentage should be retained by the company as a guaranty of the faithful completion of the work, such an ambiguity was created as to who were the responsible parties to that agreement as enabled the defendants to show that the contract made by them in their ' own name and signed by their duly authorized agent, was the contract of some undisclosed principal, cannot be sustained. It is also contended that the words “ as agreed upon here,” contained in the defendants’ letter which conferred upon their agent authority to sign the contract, imposed upon the plaintiff’s firm the duty of ascertaining all that had been previously discussed or considered between Kellogg and the defendants, and constituted constructive notice to the plaintiff’s firm of all such matters. We think that contention cannot be upheld. Those words in no way relate to the question as to who were to be the responsible parties with whom the plaintiff’s firm made their contract, but related merely to the manner of building -the ditch. The sentence contained in the letter was, “We understand that we have already given you authority to make the contracts for the building of the ditch as agreed upon here.” Plainly it was the building of the ditch that was referred to and qualified by the phrase “ as agreed upon here,” and it did not relate to the persons who were to be parties and liable to the plaintiff’s firm for the work they performed. This is the natural and proper construction of the sentence. Moreover, it is obvious that at the time this letter was written, there had been no agreement between Kellogg and the defendants as to the making of that contract, or in whose name it was to be made, and, hence, there was no agreement upon that subject when Kellogg was in Mew York, *419 and the words under consideration could not have applied to that subject. The defendants, in their letter to Kellogg of January sixth, expressly stated that upon full consideration they had concluded that the contract would better be in the name of Brown & Wells. This was in answer to an inquiry by Kellogg as to the name of the party to be used in this identical contract, and was the first time that question had been determined. It is evident, both by construction and under the proof, that the use of those words did not and could not have related to the subject of the parties who were to become liable to the plaintiff’s firm, and, therefore, the defendants’ contention in this respect cannot be sustained. A person, even though making an agreement for another, makes himself personally liable thereon if he contracts in his own name without disclosing his principal, although the other party to the contract may suppose that he is acting as agent. (Mills v. Hunt, 17 Wend. 333; Newman v. Greeff, 101 N. Y. 663; Kernochan v. Murray, 111 N. Y. 306 ; Argersinger v. Macnaughton, 114 N. Y. 535 ; Welch v. Goodwin, 123 Mass. 71; Worthington v. Cowles, 112 Mass. 30; Blakely v. Bennecke, 59 Mo. 193; Eichbaum v. Irons, 6 Watts & Serg. 67; McClure v. Central Trust Co. of N. Y., 165 N. Y. 108; Mechem on Agency, § 555; Dunlap’s Paley on Agency, 368.) 27or is it sufficient to exonerate the agent from liability that"'the seller has means of ascertaining the name of the principal. He must have actual knowledge. (Holt v. Ross, 54 N. Y. 472, 475; Cobb v. Knapp, 71 N. Y. 348, 352.) In the Holt case Judge Earl said: “ Knowledge in plaintiffs that defendant might have acted as agent was not enough, and it was not the duty of the plaintiffs to inquire, before paying, whether the defendant was acting as principal or agent. It was the duty of defendant, if it desired to be protected as agent, to have given notice of its agency.” In Cobb v. Knapp, Churh, Ch. J., said : “ It is not sufficient that the seller may have the means of ascertaining the name of the principal. If so, the neglect to inquire might be deemed sufficient. He must have actual knowledge. There is no hardship in the rule of liabil *420 ity against agents. They always have it in their own power to i relieve themselves, and when they do not, it must be prethat they intend to be liable.” When these principles are applied to the facts of this case, it becomes obvious that the defendants were bound by the contract in question as principals, were liable to the plaintiff for the amount due thereon, and that the court properly directed a judgment for the plaintiff. With our mew of the law applicable to this case, many, if not most, of the rulings upon the admission or "rejection of evidence become unimportant, as they could in no way have affected the result. Therefore, we deem it unnecessary to specially consider any of the other questions presented by counsel in their briefs and upon the argument further than to remark that we have examined all the exceptions to which our attention has been called without finding any which would justify a reversal of the judgment of the court below. The order and judgment should be affirmed, with costs. Parker, Ch. J., Gray, Bartlett, Vann, Cullen and Werner, JJ., concur. Order and judgment affirmed.