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Mertz v. Hubbard.

v. Bells, 39 Minn. 272, 39 N. W. 495, Mentz v. Newwitter, 122 N. Y. 491, 25 N. E. 1044, 11 L. R. A. 97, 19 Am. St. Rep. 514, Breckinridge v. Crocker, 78 Cal. 529, 21 Pac. 179. To the same effect are Schenck v. The Spring Lake Beach Improvement Co., 47 N. J. Eq. 44, 19 Atl. 881, O'Sullivan v. Overton, 56 Conn. 102, 14 Atl. 400, Knox v. King, 36 Ala. 367, Sherburne et al. v. Shaw, 1 N. H. 157, 8 Am. Dec. 47, and Wheeler v. Walden, 17 Neb. 122, 22 N. W. 346.

The plaintiff in error concedes that these cases are against his contention, but maintains that another line of decisions declare the contrary doctrine, and that this court is practically committed to it. He chiefly relies upon Walsh v. Barton et al., 24 Ohio St. 28, which is directly in point and goes to the full length claimed, its precise scope being indicated by this extract from the opinion:

"This writing, by fair construction, shows that the auctioneers therein named acted, in and about the making of the sale, as the agents of the vendors.

The only question, therefore, is whether it be necessary, in order to satisfy the statute of frauds, that the names of the principals should appear in the memorandum, in a case where the contract was, in fact, made by their agents, and the names of the agents are set out in the writing. We think the statute is satisfied in this respect when the names of the agents are set out in the writing, though the names of their principals be not disclosed. The case being thus taken out of the statute, the right or liability of the principals may be enforced, and their identity established, according to the rules of law governing in other cases, where contracts are made by agents without disclosing their principals. White v. Proctor, 4 Taunt. 209; Hood v. Lord Barrington, 6 L. R. Eq. 218; Lerned v. Johns, 91 Mass. 419; Eastern R. R. Co. v. Benedict, 5 Gray, 561, 66 Am. Dec. 384; Gowen v. Klous, 101 Mass. 455; Higgins v. Senior, 8 Mees. & W. 834; Thayer v. Fuller et al., 22 Ohio St. 78." (Page 39.)

The language quoted embraces all that is there said by way of argument. Of the English cases cited only Hood v. Lord Barrington, 6 L. R. Eq. (Eng.) 218, which

Mertz v. Hubbard.

appears to have been decided without much discussion, reaches the proposition stated. The case of Thayer v. Luce and Fuller, 22 Ohio St. 62, 78, and the earliest Massachusetts case, Lerned & another v. Johns, 91 Mass. 419, turn upon an entirely different state of facts. In each of them the memorandum contained no reference to any agency, but showed an agreement between two parties each of whom was personally bound by it, and all that was decided was that under such circumstances parol evidence might be adduced that one of the parties named was in fact acting for a third person, who upon such showing would be entitled to all the benefits of the contract and subject to all its burdens. The effect of the other Massachusetts cases cited is perhaps not important in view of later decisions. In McGovern v. Hern, 153 Mass. 308, 26 N. E. 861, 10 L. R. A. 815, 25 Am. St. Rep. 632, the naming of an auctioneer was held not to be a sufficient designation of the seller, and Grafton v. Cummings, supra, was cited with approval. But in Tobin v. Larkin, 183 Mass. 389, 67 N. E. 340, which is probably the latest expression on the subject in the Massachusetts reports, it was said that it is sufficient if the memorandum gives the name of the agent by whom one party is represented, although the fact of his agency is shown, and McGovern v. Hern is explained and distinguished on the ground that there the auctioneer was not in fact the agent of the seller but was merely the person who conducted the formal part of the sale.

While occasional expressions are to be found elsewhere favoring what may be characterized as the view of the Ohio and Massachusetts courts, our attention has not been called to any case other than those already mentioned which expressly upholds it. The weight of authority clearly supports the view taken by the trial court. Moreover, whatever conflict exists appears to have resulted from confusing the case of an undisclosed agency with that of an avowed agency, the principal being undisclosed. In reason there should be no diffi

Mertz v. Hubbard.

culty in reaching a satisfactory solution of the question. Where a written agreement for the sale of lands is entered into by two competent persons, each apparently acting for himself, the requirements of the statute of frauds are fully met and the result is a valid and enforceable contract. Being then complete it has no further concern with the statute. It is like any ordinary written contract. Parol evidence cannot vary its terms, but may add a new obligor or obligee by showing that one or the other of the parties was in fact acting as the authorized agent of a third person. The authorities are practically unanimous on this proposition. (They are collected in 1 A. & E. Encycl. of L. 1140, note 1, 1 A. & E. Encycl of L. [Supp.] 216, note 1, 29 A. & E. Encycl. of L. 864, note 3, and in Usher v. Daniels, 73 N. H. 206, 60 Atl. 746, 69 L. R. A. 629.) But when the writing discloses that one of the persons is avowedly acting as an agent for some one else, who is not named or described, an entirely different situation is presented. An imperative requirement of the statute is that the memorandum must indicate the parties. (29 A. & E. Encycl. of L. 864.) This requirement is not met by the naming of an agent who confessedly acts only as such. Not being personally concerned in the matter, assuming no individual liability, he is not a party to the agreement. The mention of his name is therefore immaterial, and fails to satisfy the statute. The memorandum being for this reason futile, no enforceable contract results. The rule that undisclosed principals may by parol evidence be charged with the burdens of a written contract or be given its benefits has no room for operation in such a case, because there is no valid written contract to start with to which to apply it. Such is the condition presented by the petition here involved, and for that reason the defendant's demurrer was properly sustained.

Nothing in the Kansas decisions cited by the plaintiff in error conflicts with this conclusion. The case of Butler v. Kaulback, 8 Kan. 668, has no application to

Douglass v. Leavenworth County.

the question here involved, for there the contract was taken out of the statute by part performance. The case of Wolfley v. Rising, 12 Kan. 535, does not mention the statute of frauds, and all it decided was that parol evidence is admissible to show that an apparent principal in a written contract is in fact an agent and to reveal and charge the real party in interest. In Ross v. Allen, 45 Kan. 231, 25 Pac. 570, 10 L. R. A. 835, the memorandum was held insufficient on various grounds, and Grafton v. Cummings, supra, was cited with approval. In passing it was said that if its only defect had been the failure to show for whom an agent acted the fault could probably have been remedied by parol testimony. But the remark obviously was not meant to be regarded as decisive of the question.

The judgment is affirmed.

JOHN C. DOUGLASS et al. v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LEAVENWORTH. No. 14,429 (88 Pac. 557.)

SYLLABUS BY THE COURT.

1. TAXATION-Collection of Delinquent Taxes-Commissioners Not Limited to One Proceeding. Chapter 392 of the Laws of 1901 does not necessarily limit the proceedings to have liens adjudged for delinquent taxes and to obtain decrees for the sale of the real estate involved to one action in any county for delinquencies occurring the requisite length of time before the board of county commissioners makes the order provided for therein.

2.

Court May Consolidate Actions. After the board of county commissioners has made the order directing the county attorney to institute proceedings for such a purpose against all persons owning real estate so delinquent the county attorney may proceed to comply with such order in one or more actions, subject to the power of the trial court to consolidate such actions as may seem proper and to apportion costs unnecessarily made.

Douglass v. Leavenworth County.

3.

Description of the Land. In such action any irregularity or informality in the description upon the tax-rolls of the lands taxed or upon the record of tax sales of the land sold will not invalidate the tax lien, provided the description is true, and no other property in the county answers the description, and the property may easily be found by any one acquainted with the description and the facts which exist and which may be easily ascertained on inquiry.

3. CONSTITUTIONAL LAW-Title of an Act. Chapter 392 of the Laws of 1901 is not unconstitutional by reason of defective title.

Error from Leavenworth district court; JAMES H. GILLPATRICK, judge. Opinion filed January 5, 1907. Affirmed.

Dawes & Rutherford, for plaintiffs in error.

Laurens Hawn, J. H. Wendorff, and Lee Bond, county attorney, for defendant in error.

The opinion of the court was delivered by

SMITH, J.: This proceeding was brought by the county attorney of Leavenworth county in the name of the board of county commissioners of that county against plaintiffs in error to have adjudged a lien for taxes upon certain lots in the city of Leavenworth and for a decree ordering the sale of the same to satisfy such lien. Judgment and decree of sale were rendered in favor of the plaintiff, and the defendants bring the case here.

Douglass demurred to the original and amended petitions of the county commissioners, and presents as his ground therefor that the county attorney did not fully comply with the order of the commissioners in bringing the proceeding, in that he did not unite therein as many defendants as might have been united under the order. Yet he does not suggest how his rights were or could have been prejudiced thereby. Nor can we conceive how Douglass would have been in a better position to defend his rights had all other persons been joined as defendants who might have been so joined.

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