Meyers v. Kilgen

REYNOLDS-, P. J. J. (after stating the facts).—We are compelled to reverse the judgment in this case for two reasons. In the first place, it was error to refuse the second instruction asked by plaintiff. It was a question of fact to be submitted to the jury under the evidence in the case, as to whether there had been a substantial compliance by plaintiff with the terms of the contract between him and the Rollice Realty Company, and it was a question of fact to be determined by the jury as to whether in entering into the contract for the payment of the commission of $500, the defendant Kilgen had been acting for himself or as agent for his company, or for the Rollice Realty Company. It needs no citation of authority to establish the proposition that substantial compliance with the terms of the contract is all that is required to entitle the agent to his commission and whether there has been a substantial compliance with the contract is usually, and in this case was, one for the determination of the jury. There was evidence tending to show that the original contract had been substantially complied with. That contract, by its terms, was to expire at a day named, but there was evidence tending to show that it had been extended indefinitely and that the plaintiff was not only permitted but encouraged by Mr. Kilgen, representing the sellers and owners of the property to go on and endeavor to complete it. When the sale was effected, in stead of the consideration of $25,000, the original price, [734] being called for as the sum to be paid, it was stated at $24,000, which is at least persuasive, if not conclusive, evidence that there had been no forfeiture of the $1000, as provided for in the original contract but that plaintiff had been given the benefit of that payment when the deal was consummated. So plaintiff testified, in effect. The learned counsel for respondent invokes and quotes extensively from Blackwell v. Adams, 28 Mo. App. 61, and from Reiger v. Bigger, 29 Mo. App. 421, l. c. 430, 431, as also from Ray County Savings Bank v. Hutton, 224 Mo. 42, 123 S. W. 47, in support of their propositions for affirmance. "We do not think there is anything in these cases which meets the facts o.r which presents the law applicable to this case. Indeed, as we read them, they are against respondent on principle. Those counsel have referred to text-writers and other authorities in support of the proposition that it is not indispensable in order to bind the principal that the contract should be executed in the name and by the act of the principal; that it will be sufficient if upon the whole instrument it can be gathered from the terms thereof that the party describes himself and acts as agent and intends thereby to bifid the principal and not to bind himself. That is true. It is also undoubted law, as stated by those counsel, that in general when a person acts and contracts as the agent of another, who is known as the principal, his acts and contracts within the scope of his authority are considered the acts and contracts of the principal and involve no personal liability. But .the question as to in what capacity he signed and contracted, where, as in this case, he signs in his individual name, was a question of fact to be submitted to the jury. So run the authorities. Judge Story states the general rule thus: “In the next place, a person contracting as agent will be personally liable, whether he is known to be an agent or not, in all cases where he makes the contract in his own [735] name, or voluntarily incurs a personal responsibility,, either express or implied.” [Story, Agency (9 Eel.), sec. 269.] Whether, however, he is liable, or the principal only, o.r both, is, generally, a matter of fact, to be left to the jury. While the interpretation of the contract is of course for the court, it is for the jury to determine who made the contract and to whom the credit was given. [Story, Agency, secs. 288, 289, 290.] An accepted authority states it as “now settled law that the admission of parol evidence to show that, a written contract made in the name of the agent was in fact made in behalf of an undisclosed, or if disclosed, unnamed principal, does not violate the rule against the admission of parol evidence to vary the terms of a written contract.” [Huffcut on Agency (2 Ed.), sec. 123.] The same author (section 186) says: “An agent may deal so as to bind himself personally, although disclosing his principal; it is always a question of the-intention and understanding of the parties.” As there wras testimony given in the case by the plaintiff, that he had made the contract as to his commission with Mr. Kilgen individually and not as representing his company, and looked to Mr. Kilgen alone for payment, it was for the jury to determine whether this was true. In short it was a question of fact for their determination under the evidence. In the second place, we must reverse on account of the action of the learned trial court in refusing leave to' plaintiff to reopen the case. While reopening a case after the conclusion of testimony is largely a matter in the discretion of the trial judge, that discretion is subject to our review. We are compelled to say that in the-case before us it was harshly used. If plaintiff had further testimony to offer in line with what undoubtedly was disclosed to be material at the argument on the demurrer, and which demurrer was overruled by [736] the court when first interposed by counsel for the defendant, to make clear the capacity in which he and defendant had contracted, it surely was in the line of justice and of its due administration to allow him to do so. For these reasons we are compelled to reverse the judgment of the circuit court and to remand the cause for further proceedings. Nortoni and Allen, JJ., con-