Opinion
November 30, 1959 —
January 5, 1960.
APPEAL from a judgment of the county court of Waukesha county: DAVID L. DANCEY, Judge. Reversed.
For the appellant there were briefs and oral argument by Ken Traeger of Gresham.
For the respondent there was a brief by Adolph I. Mandelker, attorney, and John H. Wessel of counsel, both of Milwaukee, and oral argument by Mr. Wessel.
On August 27, 1954, Yellow Manufacturing Acceptance Corporation brought action against George P. Britz to recover a balance due upon a conditional sale contract covering a GMC truck. It was alleged that the conditional sale contract was entered into on February 16, 1953, between defendant and H. G. Mueller of Random Lake, Wisconsin, and that Mueller had assigned the conditional sale contract to the plaintiff.
George P. Britz, later identified as George P. Britz, Sr., residing at 3901 Thirteenth street, Menominee, Michigan, answered, alleging that he did not enter into the said contract, but that he signed the contract only for, and on behalf of his son as duly authorized by a power of attorney. The son was identified as George P. Britz, Jr., Highway 41, Menominee, Michigan.
Mueller testified at the trial as a witness, but he was not a party to the action.
Defendant, George P. Britz, Sr., and his son, George P. Britz, Jr., endeavored to have the latter substituted as defendant for the former. The county court entered an order denying substitution and this order was affirmed upon appeal in Yellow Mfg. Acceptance Corp. v. Britz (1956), 271 Wis. 571, 74 N.W.2d 200. George P. Britz, Jr., was interpleaded as a defendant in this action. While he filed an answer, it does not appear that there was any complaint or cross complaint against him. In his answer, he took the same position as George P. Britz, Sr.
A related case has also been before this court, Britz v. American Ins. Co. (1957), 2 Wis.2d 192, 86 N.W.2d 18. It is clear that the plaintiff in that matter was the son.
The original conditional sale contract was in evidence, signed by Mr. Mueller as the seller. In two spaces provided for the buyer's signature the name, "George P. Britz" appears in longhand. It was admittedly written by George P. Britz, Sr. The contract contains no address or other identification of the buyer, and there is nothing to indicate that the manual signature was affixed by one person as agent for another. George P. Britz, Sr., testified that both he and his son sign their names the same way, "George Britz," or, most of the time, "George P. Britz." Upon the trial, defendant, George P. Britz, Sr., offered evidence tending to show that the sale was to George, Jr., and not George, Sr.; that George, Sr., was present when George, Jr., negotiated with Mueller for the purchase of the truck; that Mueller did not then have the proper finance papers at hand, but telephoned plaintiff in Chicago and arranged to have the papers sent out to Random Lake; that when the papers were to arrive, George, Jr., was going to be away and George, Sr., was to sign on behalf of his son, exercising the authority given him by power of attorney, and that George, Sr., did sign for George, Jr. The offered evidence to this effect was taken subject to objection. It consisted of testimony by George, Sr., and Mr. Mueller. Also marked as exhibits and returned with the bill of exceptions, but not formally offered, were a power of attorney from George, Jr., to George, Sr., executed July 1, 1950, and the insurance policy which was the subject of the case referred to in 2 Wis.2d 192. The insurance policy was dated February 16, 1953, covered the same truck, and was payable to George P. Britz, Highway 41, Menominee, Michigan, and/or plaintiff as interest might appear. Mueller also testified that he talked with someone at plaintiff's office who said it was all right for the father to sign if he had a power of attorney from the son. This testimony was stricken.
The decision of the county court was that there was no ambiguity upon the face of the contract as to the identity of the buyer; that Britz, Sr., could not be permitted to prove that his execution of the instrument, by signing his own name, was an execution only as agent and not as principal. Findings and conclusions were entered accordingly, and on January 26, 1959, judgment was entered. Defendant George P. Britz, Sr., has appealed.
The defense is founded upon the proposition that once it was established that there are two people named George P. Britz, an ambiguity was disclosed, and all facts and circumstances tending to identify which George P. Britz the parties intended to name as buyer became admissible. The county court apparently proceeded upon the theory that once it was shown that George, Sr., wrote the name upon the contract, the ambiguity was resolved, and no further extrinsic evidence was admissible.
The county court said:
"It is the signature of Britz, Sr., as `George P. Britz' which appears upon the contract as the buyer. . . . An agent, who binds himself, is not allowed to contradict the writing by proving that he contracted only as agent and not as principal."
We would agree that once the identity of the George P. Britz named as buyer was determined, that individual could not show, in order to escape liability, that he was acting as agent for another. Weston v. McMillan (1877), 42 Wis. 567; Stowell v. Eldred (1876), 39 Wis. 614; 20 Am. Jur., Evidence, p. 982, sec. 1125.
The real question, however, is: Whose, name appears in the contract as buyer?
Where it is shown that two people bear the name which appears in a written instrument, parol evidence is admissible to resolve the latent ambiguity, or question of identity. Begg v. Begg (1883), 56 Wis. 534, 14 N.W. 602. See also annotation, 20 A.L.R. 992. We see no reason why the fact that one of the two people with identical names signed the instrument is conclusive as to the identity of the person intended. This fact would doubtless have great weight if the other evidence as to the intention of the parties were not persuasive.
None of the extrinsic evidence offered tended to vary the terms of the written instrument, but all of it was offered for the purpose of resolving the question of the identity of the person referred to as George P. Britz. Had someone with a different name, but holding a power of attorney from both Britzes, written the name, George P. Britz, on this contract, it would be clear that all relevant parol evidence would be admissible to show which George P. Britz was intended, and we are of the opinion that the fact that one of the Britzes manually signed the contract is not conclusive as to the identity of the person referred to.
The American Law Institute has reached the same result in a somewhat similar situation in Restatement, 2 Agency 2d, p. 73, sec. 323 (3). It is there stated:
"If the fact of agency does not appear in an integrated contract, an agent who appears to be a party thereto cannot introduce extrinsic evidence to show that he is not a party, except: . . .
"(b) to establish that his name was signed as the business name of the principal and that it was so agreed by the parties."
The comment is made (p. 74):
"For trade purposes a principal may take the name of the agent as his own. In such case the fact that the agent signs a name which is identical with his own does not cause him to be a party if it was understood that the name so signed is the business name of the principal."
We conclude that the evidence offered by defendant, and taken subject to objection, should have been considered by the county court. Standing without dispute it would compel a finding that the buyer referred to in the contract was George P. Britz, Jr., and judgment dismissing the complaint would follow. It would appear that plaintiff was willing to rest its case upon the present record without attempting to controvert the evidence taken subject to its objection. We make no direction, however, to the county court which would preclude it from reopening the testimony if, upon proper application, it saw fit, in its discretion, to do so.
By the Court. — Judgment reversed; cause remanded for further proceedings not inconsistent with the opinion filed herein.
MARTIN, C. J., took no part.