Kitchen v. Holmes

Mr. Justice Bean, after stating the facts, delivered the opinion of the court. 1. The motion for judgment notwithstanding the verdict was properly overruled. The defect in the complaint, if any, [255] is a matter of form, and not of substance, and is cured by the answer and verdict. The complaint alleges that the plaintiff loaned the defendant the amount of money stated, to be repaid in one year after date; that as evidence thereof he executed and delivered to her the promissory note referred to; that no part of the note, either principal or interest, has been paid, and that there is now due and owing from defendant to plaintiff the whole of the principal sum so loaned, with interest thereon. The answer admits that defendant borrowed the money, and made and delivered to plaintiff the promissory note mentioned; but it avers that the money did not belong to the plaintiff but to her husband, and that the amount thereof is now owing to his estate. It is thus substantially admitted in the answer that the money mentioned in the complaint was actually borrowed by the defendant, and, although past due, has not been repaid. The only issue made is whether the money belonged to the plaintiff, and was loaned by her to the defendant, either in person or through an agent, or whether it was the property of her husband, and now belongs to his estate. That question was determined by the jury, and any defect in the complaint in failing to allege in direct terms a promise by the defendant to repay the money borrowed, or a breach of such promise, was cured by the verdict: Creecy v. Joy, 40 Or. 28 (66 Pac. 295). 2. The evidence tending to show that H. R. Holmes was acting as the agent of the plaintiff in making the loan to the defendant, and that the money in fact belonged to her, was competent, even though the defendant had no knowledge of such agency at the time he borrowed the money. The law is that, where an agent enters into a contract on behalf of his principal without disclosing the principal’s existence, the latter is entitled to sue thereon in his own name: Barbre v. Goodale, 28 Or. 465 (38 Pac. 67, 43 Pac. 378); Clark, Cont. § 308. And in doing so it is ordinarily not necessary to allege that the contract was made through the agent: 16 Enc. PI. & Pr. 899. 3. There was no error in the instruction to the jury that the [256] mere addition of the word “administratrix” to plaintiff’s name in the note given to her by the defendant was not conclusive evidence that the contract was made with her in her capacity as representative of her deceased husband’s estate, nor in illustrating such instruction by saying that it was no more conclusive than if the words “widow,” or “native of Oregon,” had been used; but that the jury were entitled to consider the form and language of the note, with the other circumstances in the case, in determining whether in fact the money was borrowed from the plaintiff or from her deceased husband. The action is not brought upon the note, but upon an alleged contract, made almost two years prior to its execution. The note is important only as evidence bearing on the question whether the money was loaned to the defendant by the plaintiff or by her deceased husband. Where a note is made payable to a person by name, the mere addition of the word ‘ ‘ administrator, ” “ executor, ’ ’ or the like, is generally considered a mere description of the person, not tending so much to show the capacity in which he takes the note as serving to identify him as an individual (Burrell v. Kern, 34 Or. 501, 56 Pac. 809), although, in connection with other circumstances, it may indicate an intention to limit the maker’s liability to him in a representative capacity. 4. The variance between the evidence tending to show that the loan was made in 1896 and the averment of the complaint chat it was made in 1898 is not material. There was no controversy on the trial as to the defendants actually borrowing the money mentioned and referred to in the pleadings. That fact was admitted. The only question was whether the money belonged to the plaintiff or to her husband, and it was immaterial for the purposes of the trial whether the loan was made in 1896 or 1898. This disposes of the assignments of error, and, for the reasons given, the judgment of the court below will be affirmed. Affirmed.