Express Publishing Co. v. Levenson

292 S.W.2d 357, 1956 Tex. App. LEXIS 1682

Opinions

POPE, Justice.

Express Publishing Company sued Meyer S. Levenson and his wife, Frances R. Lev-enson,' for $17.0, interest and attorney’s fees due on a promissory nóte ' executed and signed'“The Colony Room-By: M. S. Lev-enson.”' The note was in payment of newspaper advertising. Colony Room, is a restaurant- operated by and under the assumed name of Frances. Levenson, the wife of M. S. Levenson. The trial court held that neither the wife nor her husband was liable on the note. The wife was not liable because she was a married woman whose disabilities of coverture had not been removed to permit her to engage in a business enterprise and make contracts. Art. 4626, Vernon’s Ann.Civ.St. Wyner v. Express Pubishing Company, Tex.Civ.App., 288 S.W.2d 583; Jesse H. Jones & Co. v. Black, Tex.Civ.App., 42 S.W.2d 151. The trial court held that the husband was not liable, since he signed only as an agent of the Colony Room, which is,the assumed name for Frances Levenson, his principal. Apparently all parties treat the Colony Room as the wifels separate property.

The husband executed the negotiable instrument for and in the name of his principal, who was disclosed through the public registration record for assumed names. The principal escaped liability by pleading-and proving that she is a married woman and legally incompetent. What is the liability of an agent for a legally incompetent principal? It does not appear that the third party, Express Publishing Company, knew that the principal was under the disability of coverture. Foster v. Hackworth, Tex.Civ.App., 164 S.W.2d 796, is not applicable, since that case illustrates the rule when the wife, as principal, is.com- ' petent. The situation here presented is that of a married woman who lacked competency to contract, since she was under the disability of coverture concerning the transaction. “It is a general rule that one who. assumes to act as agent for a principal who has no legal status or existence-renders himself individually liable on contracts so made.” 2 Am.Jur., Agency, § 316; Restatement, Agency, § 324, Comment a; - 3 C.J.S., Agency, § 213; Redden v. Capps, Tex.Civ.App., 15 S.W.2d 670; State Nat. Bank of Bonham v. Hester, Tex.Civ.App., 1 S.W.2d 915.

Judgment is reversed and here rendered for appellant for the sum of $170, together with interest and an additional ten percent on the principal and interest as attorney’s fees.