Opinion
8 Div. 443.
April 20, 1922.
Appeal from Circuit Court, Madison County; O. Kyle, Judge.
Spraggins Speake, of Huntsville, for appellant.
Count 3 charges no cause of action. 192 Ala. 354, 68 So. 291 Morring could not recover under the facts proven. 2 C. J. 875 and 897; 15 Ala. 293; 152 Ala. 571, 44 So. 642, 13 L.R.A. (N.S.) 156, 15 Ann. Cas. 237.
R. E. Smith, of Huntsville, for appellee.
Although an undisclosed principal, Morring could enforce the contract made by his agent. 192 Ala. 235, 68 So. 874; 78 Ala. 511, 56 Am. Rep. 52; 128 Ala. 221, 29 So. 640; 135 Ala. 415, 33 So. 160; 137 Ala. 292, 34 So. 839. The scintilla of evidence rule obtains in Alabama. 202 Ala. 681, 81 So. 637; 204 Ala. 297, 85 So. 535; 17 Ala. App. 290, 84 So. 545.
Appellee recovered judgment against appellant for commissions earned by one Preston as his agent in procuring an exchange of lands between appellant and one Clay. Appellant defended on the ground that, without being apprised of Preston's agency, he had dealt with Preston as principal; that he had the right to determine with whom he would contract; and that another could not be thrust upon him without his consent.
There is an exception in the case of executory contracts involving personal trust and confidence (Birmingham Matinee Club v. McCarty, 152 Ala. 571, 44 So. 642, 13 L.R.A. [N. S.] 156, 15 Ann. Cas. 237), but, otherwise, the rule seems to be universally accepted that, where an agent on behalf of his principal, enters into a simple contract as though made for himself, and the existence of the principal is not disclosed, the contract inures to the benefit of the principal, who may sue thereon as the real party in interest. 2 C. J. 873, 874. This rule has been frequently followed in this court. Sellers v. Malone-Pilcher Co., 151 Ala. 426, 44 So. 414, citing cases; Western Union v. Northcutt, 158 Ala. 539, 557, 48 So. 553, 132 Am. St. Rep. 38, citing like cases. Here the contract had been executed, and plaintiff's right to recover on the third count, which alone went to the jury, was submitted under proper instructions.
Charge 2, requested by defendant, was properly refused. Fairly construed, there was no evidence going to show that plaintiff and Preston were partners at the time of the transaction in controversy.
There was no demurrer to the complaint, but now appellant suggests that it failed to state a cause of action. We cannot agree. There was an ellipsis; but, as against the objection now taken, the count was self-correcting. It shows that defendant failed or refused to pay commissions.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.