No. 8,376. MURPHY v. HELMRICH ET AL. Department One. Filed October 31, 1884. STATUTE OF FRAUDS-WRITTEN ADMISSIONS OF VERBAL CONTRACT.-Written admissions of a verbal contract of sale, signed by the party sought to be charged, are sufficient to take such contract out of the statute of frauds. AGENT WHEN PERSONALLY LIABLE ON WRITTEN CONTRACT EXECUTED IN HIS OWN NAME. Where an agent, in executing a written instrument, does not attempt to bind his principal, and in terms imposes an obligation on himself, he incurs by such act a personal liability, even though he described himself as an agent. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendants a new trial. The opinion states the facts. Friedenrich & Ackerman, for the appellants. MCKEE, J. This was an action to recover the difference between the contract and market price of one hundred shares of San Francisco gas stock which the plaintiff claims to have sold to the defendants on the fifteenth of October, 1878. It is contended that the defendants are not liable, because there was no note or memorandum of the sale in writing, or subscribed by them; and therefore the sale was void; and, because in the transaction, they acted in the capacity of brokers for another person for whom they purchased, and not for themselves. The promise by the defendants on the fifteenth of October to take the stock at the stipulated price was valid. Next day the plaintiff sent word to the defendants that the stock was ready to be delivered to them, and to come and get it and pay for it; they declined to pay; but, in answer, wrote to the plaintiff as follows: "The purchaser of the one hundred shares of gas stock has not made his appearance, and it looks very much as if he was trying to back out. If you have accounted for the stock already, we will, of course, make the deficiency good; if not, would advise to do nothing in the matter, as there are to-day no buyers over ninety-four cents. "Yours, etc., HANSEN." Written on the back of the note was the following: "Will call as soon as I get a chance." On the same day the plaintiff also received the following: "I have not seen the purchaser of the one hundred shares gas stock, but we guarantee that it is all right at ninety-five and onehalf, and you can account for it to your buyer at that rate. But we shall probably only take the stock to-morrow, unless we meet the party. Will that be in order? "Yours, etc., HANSEN." After the receipt of those notes, the plaintiff tendered the stock to the defendants at their place of business, and demanded the amount of the purchase money; they declined to take the stock or pay the money; but afterwards wrote the plaintiff as follows: "October 24th, 1878. "In the present state of the market, for gas stock, we have not as yet received a satisfactory bid. We think, however, you had better sell the stock if you have an opportunity to do so. "But we cannot understand why you should wish to sell it on our account, as we did not buy it on our account. Surely, we thought the party that wanted the stock could be depended on, which we told you, acting as your agent and in your interest. "Under no circumstances could we have acted any differently; but it appears unfortunately for the owner of the stock. We shall continue our effort, and remain "Mr. Murphy, of the Pacific Bank." HELMRICH & HANSEN." Upon the receipt of this last note the plaintiff sold the stock in market for eighty-seven dollars and fifty cents per share and notified the defendants that he would look to them for the deficiency; but they refused to pay, and hence this action. The defendants by their answer to the complaint in the action, specifically denied the averments of the complaint, and set up that they acted in the transaction "solely as brokers and agents for others;" and the only questions at issue were: 1. Did the defendants buy the stock, as charged in the complaint? 2. Did they buy for themselves, or as agents for another? The evidence shows that there was a complete verbal contract of sale which was followed by written admissions of the contract signed by the defendants. These they signed by their own names, and not as agents for any other person whom they named as principal. In thus signing them they bound themselves as principals, even if they were acting for another, unless it was so understood and intended between them and their vendor. But their memoranda did not disclose the name of any principal, and there was no evidence given tending to prove that there was any other known person for whom they acted and intended to bind. Where an agent does not attempt in an instrument to bind his principal, and in terms imposes the obligation on himself, the rule is, that he incurs by such act a personal liability even although he described himself as agent: Dayton v. Waren, 43 N. J. L. Ř., 659. This personal liability they assumed, for while vaguely intimating that there was somebody for whom they were acting, they guaranteed the plaintiff as their vendor that he would be paid ninety-five dollars and fifty cents per share for the stock which they agreed to buy from him, and afterwards directed him to sell it and they would make good any deficiency. He accordingly sold the stock in open market and accounted to them. Under those circumstances they are not relievable from responsibility on the ground of agency for some unknown person. "If a person," says Chancellor Kent, "would excuse himself from responsibility on the ground of agency, he must show that he disclosed his principal at the time of making the contract, and that he acted on his behalf so as to enable the party with whom he deals to have recourse to the principal in case the agent had authority to bind him. "The agent becomes personally liable when the principal is not known, or when there is no responsible principal, or where the agent becomes liable by an undertaking in his own name, or when he exceeds his power:" 2 Kent's Com., 630-631. And such is the English law: "A man has the right to the character, credit and substance of the person with whom he contracts; if, therefore, he enters in a contract with an agent, who does not give his principal's name, the presumption is that he is invited to give credit to the agent; still more if the agent does not disclose his principal's existence:" Anson on Contracts, 345; see, also, Benjamin on Sales, pp. 235, 52, 53. We find no error in the record. No. 9,530, PEOPLE, EX REL. GLOVER, v. BECKER. Department One. Filed October 28, 1884. REMOVAL OF INTERPRETER OF CRIMINAL COURTS OF SAN FRANCISCO.-An interpreter, appointed for the criminal courts of the city and county of San Francisco, under the act of March 8, 1876, by the county judge, the mayor and the police judge of said city and county, may be removed from office, and another interpreter appointed in his place, after the adoption of the present constitution, by the votes of the mayor and superior judge, although the police judge votes against such removal. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the defendant. This is a proceeding in the nature of quo warranto, brought to oust respondent from, and reinstate relator in the office of interpreter of certain foreign languages in the criminal courts of San Francisco. The complaint and amendment set forth in effect that the mayor, the police judge, and the superior judge of criminal department No. 11, all of said city, at a meeting held by them in April, 1883, removed the relator from said office by the votes of the mayor and superior judge, the police judge voting against such removal, and that thereupon the defendant was by the votes of the mayor and superior judge elected to fill the vacancy thus occasioned. The court below sustained defendant's demurrer to the amended complaint, on the ground that it did not state facts sufficient in law to constitute a cause of action. Relator failed to amend, and takes this appeal from judgment on demurrer. The act of March 8th, 1876, Statutes 1875-76, p. 153, authorized the county judge, the mayor and the police judge of San Francisco to appoint an interpreter of the Portuguese, Italian and Slavonian languages for the criminal courts of the city and county. The relator was appointed under this act prior to the adoption of the new constitution, which abolished the county court; and in the matter of his removal from and the appointment of defendant to this office, he claims that the superior judge had no authority to act in the place of the county judge on this commission. This claim of relator presents the only point in issue. Attorney-General and C. B. Darwin, for the appellants. THE COURT. On the authority of ex parte Reis, 12 P. C. L. J., 222, judgment affirmed. THE WIFE'S EARNINGS. The supreme court of Texas, in a very recent case, decided a point the money so borrowed, and of course the proceeds of the business in liable to . course, The execution for the husband's debts. W In this case the wife, of sole trader." as not carrying on the business as a + general system of "community property" in California was borrowed from the legislation of Texas on that subject; avowedly although there are, doubtless, special provisions in our civil code, which property, given by the civil code, money borrowed by the wife for busi- 3 Civil Code, § 169. |