Long v. McKissick

27 S.E. 636, 50 S.C. 218, 1897 S.C. LEXIS 20

• Court: Supreme Court of South Carolina
• Decided: July 31, 1897
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

This is an action originally instituted against the late I. G. McKissick and John H. Kelly to recover the amount of a bid made by the said McKissick for a tract of land, when it was offered for sale as the property of one Joseph Kelly by the plaintiff, under an execution issued to enforce a judgment in favor of Junius R. Page and others against the said Joseph Kelly and others. On the motion of the original defendants, the plaintiff was required to elect against which of the two original defendants he would proceed; and he elected to proceed against the said I. G. McKissick, and he dying intestate soon after, the defendant named in the title of this case was substituted as his administrator.

The case came on for trial before his Honor, Judge Ernest Gary, and a jury, and resulted in a judgment in favor of the plaintiff. From that judgment defendant appeals upon the several grounds set out in the record. For a full understanding of the points made by the appeal it will be necessary for the reporter to set out in his report of the case a copy of the charge of the Circuit Judge, together with the exceptions. We do not propose to consider the several exceptions, seventeen in number, seriatim, but, on the contrary, will take up the several questions which are presented by the exceptions.

1 The defendants demurred to the complaint, upon the ground that the facts stated therein were not sufficient to constitute a cause of action; and in accordance with the rule filed two specifications in writing, setting forth the particulars wherein the complaint is claimed to' be defective. Although there are, in form, two specifications, j'et, as it seems to us, they both make the single point that the complaint shows on its face that the contract as set forth in the complaint upon which the action is based, was a contract made by the plaintiff with the defendant’s intestate in a representative and not in his individual capacity. The complaint, after alleging in the first paragraph the official character of the plaintiff, and in the second paragraph the judgment under which the land was levied on and offered for sale by the said sheriff, proceeds in the third and fourth paragraphs as follows: “Third.. That at said sale plaintiff knocked down said land to the defendant, I. G. McKissick, for the sum of $900, he being, at that price, the highest and last bidder therefor; that said defendant told plaintiff to charge the land to I. G. McKissick, attorney; that at the demand of J. C. Wallace, attorney for the judgment creditors, plaintiff demanded of said defendant the name of his principal, the real purchaser, and, at the same time, informed him that, if he did not disclose his principal, he would be personally liable for the purchase; that said defendant directed him to charge the land, as he had before directed him to do, to I. G. McKissick, attorney; and under direction of J. C. Wallace, attorney for the judgment creditors, plaintiff did charge said land and sale in and on his sale book to I. G. McKissick, attorney, at $900. Fourth. That said defendant failed and refused to comply with his bid and complete said purchase, and long after said sale informed plaintiff that he bid off said land as the agent of John H. Kelly, who was the real purchaser.” Taking these allegations to be true, as they must be taken to be, under the demurrer, we think that, instead of showing that the contract was made by Mr. McKissick in a representative capacity, they show that the contract was made by him in his individual capacity, and that he thereby became personally liable to fulfill such contract. In Story on Agency, sec. 269, quoted with approval in Miller v. Ford, 4 Strob., at page 216, the rule is thus laid down: “A person contracting ás agent will be personally liable, whether he is known to be an agent or not, in all cases when he makes the contract in his own name, or voluntarily incurs a personal responsibility, either express or implied, wherever from the form of the transaction he has become a direct personal party to the contract.” Again, as is said by the same distinguished author at sec. 155, and likewise quoted with approval in the case above cited: “If the terms of a written contract, made by an agent, show explicitly that he is an agent, and that he means to bind the principal and not himself, that construction will be adopted, however inartificial the instrument may be; but if the terms are not thus explicit, although it may appear that the party is an agent, he will be deemed to have contracted in his personal capacity.” Again, in Davenport v. Riley, 2 McC., 198, it was held that where a factor dealing for a principal, but concealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him, to all intents and purposes, as the principal, and may bring an action on a breach of warranty. So in Conyers v. Magrath, 4 McC., at page 394, it was laid down as a settled, conceded rule: “That if an agent sell, without disclosing the name of his principal, he will, in respect to the purchaser, be regarded as the principal.” Of course, the converse of this is likewise true: That if an agent buy without disclosing the name of his principal, he will, in respect to the vendor, be regarded as the principal. The rule is thus stated, in general terms, in Welch v. Goodwin, 123 Mass., 71 — reported also in 25 Am. Rep., 24: “One who acts as the agent of an undisclosed principal may be treated as principal by the party with whom he deals.” This rule has not only the support of authority but also that of reason and common sense. If a person should be permitted to go through the form of entering into a contract with another, as agent of a third person, and fail or refuse to disclose the name of his principal, inasmuch as the contract could not be enforced against the unknown principal, it could not be enforced at all unless the agent could be held personally liable, and thus the transaction would become nugatory. It seems to us this rule is especially applicable to sales made by the sheriff under execution; for if it were otherwise, it would be very easy for a defendant in execution to secure a postponement of the sale of his property by procuring some one to attend the sale and bid off the property as the agent of an undisclosed principal. It is clear that the facts alleged in the third paragraph of the complaint — that defendant’s intestate bid off the land, and directed the sheriff to set down the bid “to I. G. McKissick, attorney,” that when the name of his principal was demanded, he failed or refused to give it, and after express notice that, unless he disclosed the name of his principal, he would be held personally liable, he still repeated his direction to the sheriff to set down the bid “to I. G. McKissick, attorney” — are quite sufficient to fix upon the defendant’s intestate personal liability for the amount of the bid. The allegation in the fourth paragraph of the complaint, that “long after said sale the defendant informed the plaintiff that he had bid off said land as the agent of John H. Kelly, who was the real purchaser,” even if not eliminated from the complaint by the discontinuance of the action as against said Kelly, cannot affect the question, for the obvious reason that this information was not communicated to the plaintiff until “long after” the contract between the plaintiff and the defendant’s intestate was closed. That contract was closed when the hammer fell and the bid was entered in the sheriff’s sale book. There was no error, therefore, on the part of the Circuit Judge in overruling the demurrer.

2 The next position taken by appellant is that the plaintiff had no cause of action on a contract, but that defendant’s' intestate, if liable at all, was liable only in an action for a tort. The frank admission of the counsel for appellant, that the decided cases are against him on this point, would seem to be sufficient to dispose of this position; for it is clear, from what we have said above, that the effort of counsel to differentiate those cases from the present by the contention that Mr. McKissick refused to contract as an individual and insisted that the contract, if made at all, should be made with him as the agent of another, cannot be sustained, because the contention upon which it is based is not true either in law or fact. For, as we have shown, when a person enters into a contract as agent for another, whose name he fails or refuses to disclose, the law fixes upon him a personal liability. The undisputed facts are that when Mr. McKissick was called upon to disclose the name of his principal, he refused, or at least failed, to do so, whereupon he was distinctly notified that unless he disclosed the name of his principal, he would be held personally liable, and that, after such notice, he persisted in refusing to disclose the name of his principal, without any disclaimer of such liability, but simply repeating his previous direction to set down the bid “to I. G. McKissick, attorney.” There can be no doubt, therefore, that the understanding of the plaintiff was that Mr. McKissick was personally liable for the amount of the bid, and in this understanding Mr. McKissick must be regarded as having acquiesced — silently, at least. For if the defendant’s intestate repudiated such understanding, he should have said so when distinctly notified that if the bid was entered as he directed, he would be held personally liable, whereupon the sale would have then proceeded. But not having done so then, neither he nor his representative can now be permitted to repudiate the understanding upon which the sheriff manifestly acted.

3 The next position taken by the appellant is that the entry in the official sale book of the sale was not the original entry, but that the memorandum book in which the original entry was made, was the best evidence, and should, therefore, have been produced. The law requires the sheriff to enter in his official sales book, and such book affords the best evidence of such sales. The mere fact that a memorandum book, or sometimes a slip of paper, is used at the auctioneer’s block to enter the items of the sale, which are afterwards entered in the official salé book, does not make such memoranda the best evidence of such entries. It is well known that sales by the sheriff are usually made out of doors, sometimes in bad weather, and to require the sheriff to take a ponderous book constituting a part of the records of his office out to the auctioneer’s block and there make the entries in it the very moment after the sale, would be not only a harsh and unreasonable requirement, but would be far from conducive to the proper preservation of such book, and to the neat and orderly entries proper to be made in such book. Besides, the authorities show that this position cannot be sustained. See Ep. Church of Macon v. Wiley, 2 Hill Ch., at page 590, where it is said by Harper, Ch.: “I do not understand the objection to apply to the entry in the auctioneer’s book, but to the pencil memorandum made on the land at the moment of sale, which it was thought constituted the true memorandum. But this is contrary to the universal understanding. The entry in the auctioneer’s book was made as early as practicable.” So here, in the absence of any evidence to the contrary, we must assume that the sheriff did his duty, and made the proper entries in his sale book as early after the sale as practicable. So it was said by O’Neall, J., in Elfe v. Gadsden, 1 Strob., at page 231: “It is allowable for the sheriff to keep his private memoranda, and from them to make the entry required by law in the official book.” To the same effect is the case of Christie v. Simpson, 1 Rich., 407. The points raised by the 4th, 6th, 9th, 10th, 12th, 15th, and 16th exceptions are but repetitions in different forms of the same points which have already been considered and disposed of. These exceptions must, therefore, be overruled.

4 Exception 5 imputes error to the Circuit Judge in charging the jury that the law as laid down in the case of Lagrone v. Timmerman, 46 S. C., 372, is the law applicable to this case. This is based upon a misconception of the charge. What was said in that case was merely referred to by the Circuit-Judge as illustrative of the principle of law applicable to this case; and in this there was no error.

5 Then7th and 14th exceptions are so manifestly without foundation that it is scarcely necessary to do more than to say so. It cannot be denied that there is no warranty at sheriff’s sales, where the rule is caveat emptor. The mere fact that there is a deficiency in the number of acres contained in the land is no defense to an action for the amount of the bid. The land was advertised by correct metes and bounds as containing 393 acres, more or less, and it certainly would be a novel idea to hold that the sheriff thereby represented that the land contained 393 acres, and there was no testimony tending to show that any other representation as to the number of acres was ever made by the sheriff or by any one else. It is true, that there is an allegation in the answer, that the plaintiffs in the execution under which the land was sold and the plaintiff herein, represented, falsely and fraudulently, that the land contained 393 acres, but there is not a particle of testimony to sustain such an allegation. On the contrary, the testimony tends to show that the defendant and those for whom he claimed to have been acting, knew as well if not better than any one else the true area of said land. These exceptions must, therefore, be overruled.

6 The 8th exception, as we learn from the argument, was intended to impute error to the Circuit Judge in violating that clause of the Constitution which prohibits a judge from charging on the facts. We are unable to discover in the language quoted in this exception, or anywhere else in the charge, any violation of this constitutional provision. So, too, as to the 17th exception, which is based upon the same ground. The Judge simply instructed the jury, as it was his duty to do, as to the legal effect of the record, which was offered in evidence without objection. Both of these exceptions must be overruled.

7 There is no basis for the 13th exception. Bor even conceding, what we are not to be understood as conceding, that the “judgment book” was the highest and best evideuce of the judgment under which the land was sold, yet the record constituting the judgment roll having been introduced without objection, as the “Case” shows, would thereby become competent evidence of the judgment, and the question sought to be raised by this exception cannot now be raised, and hence cannot now be considered. This exception must likewise be overruled.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.

Mr. Justice Gary did not sit in this case.