Weston v. McMillan

42 Wis. 567

• Court: Wisconsin Supreme Court
• Decided: August 15, 1877
• Status: Published

Opinion

EyaN, O. J.

The only question in this case worthy of consideration is, whether the respondents could show by parol that they made the simple contract in their own name, with Stevens, on behalf of the appellants, and as their agents; and that is no longer an open question in this court. Stowell v. Eldred, 39 Wis., 614; Saveland v. Green, 40 id., 431. In Stowell v. Eldred, the rule is cited from Judge Story’s admirable work on Agency. And we cannot do better here than add to his, the language of Baron Parke, in Higgins v. Senior, 8 M. & W., 834:

“ There is no doubt that where such an agreement is made, it is competent to shew that one or both of the contracting parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one band to, and charge with liability on the other, the unnamed principals; and this, whether the agreement be or be not required to be in writing, by the statute of frauds; and this evidence in no way contradicts the written agreement. It does not deny that it is binding on those whom, on the face of it, it purports to bind, but shews that it also binds another, by reason that the act of the agent in signing the agreement, in pursuance of his authority, is in law the act of the principal.

“ But, on the other hand, to allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party, is not such, would be to allow parol evidence to contradict the written agreement; which cannot be done. And this view of the law accords with the decisions, not merely as to bills of exchange signed by a person without stating his agency on the face of the bill, but as to other written contracts, namely, the qases of Jones v. Littledale and Magee v. Atkinson. It is true that the case oí Jones v. Littledale might be supported on the ground that the agent really intended to contract as principal;- but Lord DeNMAN, in delivering the judgment of the court, lays down this as a general proposition,£ that if the agent contracts in such a form as to mate himself personally responsible, he cannot afterwards, whether his principal were or were not known at the time of the contract, relieve himself from that responsibility.’ And this is also laid down in Story on Agency, § 269.”

There is, indeed, a question of a little item disbursed by the respondents in the course of their agency. It almost appears that the item is not included in the verdict. But, under the charge of the court below, it might well have been, under an amendment of the complaint, which we must consider made, to support the verdict. Flanders v. Cottrell, 36 Wis., 564.

By the Cowrt. — The judgment of the court below is affirmed.