
    NATURE OF CONTRACT OF EMPLOYMENT BETWEEN GENERAL AND LOCAL AGENT OF AN INSURANCE COMPANY.
    Common Pleas Court of Jefferson County.
    Samuel Bigger v. The State Life Insurance Company of Worcester, Massachusetts, et al.
    Decided, December, 1908.
    
      Jurisdiction — Under Section 5085 — Providing for Issue of Summons to Another County — Question as to Individual of Joint Liability— Breach of Contract of Employment.
    
    1. A contract of the character involved in this case, entered into between the general agent of a life insurance company and one who is to serve under him, who is identified in the contract as “agent,” is a contract with the general agent acting in his individual capacity, and is not one upon which the company is jointly liable.
    2. In an action for damages for breach of such a contract, brought against both the general agent and the company, service of sum--mons upon the company, in the manner provided by the statute, does not authorize the issue of summons to the general agent in another county and service upon him there; and service of summons upon the general agent in such other county of his residence does not give the. court jurisdiction over him, and the action must he dismissed.
   Shotwell, J.

This ease is submitted on a motion on behalf of Hubert H. Ward, one of the defendants, to dismiss for want of jurisdiction.

The suit is brought to recover ten thousand dollars damáges, which the plaintiff alleges that he has sustained by reason of his wrongful discharge as an agent .of the defendants.

The defendants are the insurance company and Hubert H. Ward. The defendant .insurance company is served as the statute provides and the court acquires jurisdiction, under that statute, in this county. ■ <

A summons for Hubert H. Ward was issued to Cuyahoga county and served there. It is now claimed that Hubert H. Ward could not be compelled to answer to an action in this county, unless he is jointly liable with the defendant insurance oompanjq which’is rightly served in this county.

Section 5035 of our statutes provides, that when an action is rightly brought in any county, a summons may issue to another county against a defendant who is jointly liable with the one rightly served in this county'. So that if Hubert H. Ward is to be held as a defendant here, he must be shown by the petition to be jointly liable with this insurance company. If the insur■ance company is not liable in this county, then Hubert IT. Ward can not be held in this county.

The question therefore is, under this pleading, whether or not this suit is rightly brought against the insurance company. The petition is very general upon that question as to whether or not these parties are jointly liable. It is .alleged that the plaintiff was employed to perform such duties as might be required of him by the general agent. It is further alleged that in consideration of the services rendered defendants by -the plaintiff under this contract he was to be paid .thus and so, and it is further alleged that he was to receive certain commissions so long as he remained connected with this general agency.

Now these are substantially all of the allegations that would make these two defendants jointly liable to him, except the further allegation that these defendants wrongfully discharged him and refused to permit him to do this work.

But now what was the character of his employment? The contract of employment is alleged by this petition to have been altogether in writing, and is contained in three separate exhibits attached to the petition and all of'them made, a part of it. So that whether or not these parties are jointly liable is to be determined not only from the body of the petition itself, but from the exhibits that are attached to it; for these exhibits are everyone of them made a part of the petition, and therefore in considering the petition they must all be construed together— the petition itself and the three exhibits in connection with it. All of the contracts .appear in the exhibits and the petition only states conclusions that are drawn from those exhibits; hence the whole contract so far as it concerns these three parties is to be found in these three exhibits.

What do these three exhibits show? Exhibit “A” is the first contract of employment • that was made, and this oontra'ct is made between Hubert IT. Ward, general agent of the State Mutual Life Insurance Company of Worcester, Massachusetts, party of the first part, and Samuel Bigger, of Smithfield, in the county of Jefferson and state of Ohio, party of the second part. Now notice that this contract states that it is a contract between Hubert H. Ward, who is described as the general agent of this company, but the contract is none the less between that Hubert H. Ward and this Samuel Bigger. Then it says that, “said party of the first part doth hereby appoint the said second party of the second part.” That is, it constitutes Bigger the agent of Ward. Then it stipulates that:

“The said agent shall act exclusively for said general agent, so far as to tender all risks obtained by him, or under his control, to said general agent.
“2d. The said agent shall keep regular and accurate statements of all 'transactions' for account of said general agent, and slxall on or before the twentieth day of each month transmit to said general agent a report in detail.”

And further, he is to keep all books of account, registers, etc., to be the exclusive property of said general agent- and open to his inspection, and he is to remit in accordance with instructions received from said general agent, and he has no authority to make contracts different from those that are permitted by this general agent, not to contract any debt rendering the general agent liable, and to be allowed a commission, which is to be collected -and paid over by the general agent. He is to give bond, and that bond is to be deposited with the general agent, and he is to make reports to the general agent and devote his entire time to the business in hand.

When we come to the signatures to the contract we find that it is signed "Hubert IT. Ward, general agent,” and "Samuel Bigger, .agent.” They are both described as agents.

Now when we come to exhibit "B,” which is shorter,'it is a modification of exhibit “A,” but it is the same contract exactly between Hubert H. Ward, who is described as " general agent, ” and Samuel Bigger, who is further described as ‘ ‘ district agent, ’ ’ and when we come to the signatures they are simply Hubert H. Ward and Sámuel Bigger, without any further description. When we come to exhibit "C” we find another modification of the original contract; that is headed "to our agents,” and signed by the general agent, and it gives them a new schedule of commissions which the company has promulgated. But exhibit "C” is not signed by the plaintiff and, therefore, cuts no figure in the determination of this question. So the question as to who it is who employed Samuel Bigger must be determined by these contracts that I have read, and from all of these contracts, and I have read and called attention to all the parts of them that have any bearing upon the question in hand here. It appears that Samuel Bigger was employed by Hubert H. Ward as an agent to do certain work for Hubert H. Ward. Hubert H. Ward was the man who was in touch with the company and he was the man who assumed to employ Mr. Bigger and assumed to pay him the amounts stipulated in the contracts made. It is nowhere stated that the insurance company is to be liable. The whole transaction is a transaction between Samuel Bigger and Hubert H. Ward. It is true that Hubert II. Ward is repeatedly described as general agent, but does that make the contract a contract of the insurance company?

In 44 O. S., 441, there is this case:

“The drawee of a bill of exchange, drawn by the ‘Kanawha & Ohio Coal Co.,’ was described in the bill as ‘John A. Robinson, Agt.,’ and it was accepted by him as ‘John A. Robinson, Agent K. & O. C. Co.’ Held: That the acceptance so made was the personal obligation of John A. Robinson, and .that in a suit upon the acceptance by an indorsee against him, parol evidence was not admissible, in the absence of fraud, accident, or mistake, to show that the defendant so .accepted the bill intending to bind the drawer as his principal, and that .this fact was known to the plaintiff at the time it became the owner and holder of it.”

Now the question what kind of a contract this was, whether an individual contract with the man who signed it or the company’s contract, is discussed on page 447 of the opinion, as follows:

“The fact that he is designated in the bill and described in his acceptance as agent, does not vary the ease. This description of himself may, and nó doubt did, serve a useful purpose in the settlement of his accounts with the company. ’ ’
“The law as to notes and bills executed by persons acting as agents of other persons, is not uniform, but, as a rule, where one acting as agent uses words that import a personal agreement on his part, and signs his own name, it is held to be his individual obligation, although he describes himself as agent; the added words -being regarded simply as a description of his person. ’ ’

Another case holding the same way is found in 38 O. S., 442:

“The character of the liability of the drawer of a bill of exchange must be determined from the instrument; and the addition of the word ‘agent’ to his name, without anything else on the instrument indicating his principal, does not relieve him from personal liability as drawer of the bill.”

14 C. C. Rep., 124:

“Where an agent makes a promissory note, signing the same by his name ‘as agent,’ he is liable as maker of the note, notwithstanding the 'fact that the payee knew he was acting as such agent at the time. The addition of the word ‘agent’ to his name by the endorser of a promissory note, without anything else on the instrument indicating his principal, does not relieve him from personal liability as endorser. ’ ’

Another case is found in 17 O. S., 125:

“Where an agent drew a post dated negotiable check on a bank, and signed it with his own name, adding thereto the word ‘agent,.’ but without indicating thereon the name of his principal, and .the party to whom such cheek was delivered negotiated it to a third person, for a valuable consideration, before the day of its date. Held: That the principal is not bound by the cheek, and the holder can not maintain an action thereon against him. ’ ’

Now these authorities are all summed up in Swan’s Treatise where he discusses the law of agency at pages 366 and 367, as follows:

“As to the mode of signature to commercial paper, the somewhat conflicting authorities will, on examination, be found to result in the following reasonable rule: If from the mode in which the subject-matter of the instrument is set forth in the body of it, or if from the description therein of the principal or agent, or if from the terms of the instrument or any other matter therein, it appear that the parties intended it as the promise of the principal, by and through the agent, and the name of the principal appear on the instrument, it is held to be the promise of the principal, however informally signed by the agent, and however informally the promise of- the principal, by and through the agent, may be expressed. All, indeed, that seems necessary is, that the name of the principal should appear upon the face of the instrument, and that the instrument itself should indicate a ministerial act upon the part of the agent. ’ ’

Now he calls attention to .the fact that this is. the rule as to negotiable instruments and then he goes to the discussion of the subject in general, and says:

“But, in regard to other instruments which are signed by an agent in his own name, with .the addition of the word agent thereto, or other indication in the contract that the contract is by an agent, the principal may be made liable thereon, whether his name appears upon the paper or not, upon proof that the agent was authorized to make the contract for his principal. In the absence, however, of all indications upon the face of any such contract that the party signing it was acting as agent, the agent only will be liable upon it.
"If the terms of .a contract obviously show that the agent intended to be personally responsible, as where he engages expressly in his own name to pay or perform the acts, he will be held personally responsible, although he describe himself in the body of the instrument, or in his signature, as acting in behalf of other persons.”

Now apply that language to this ease as we have it. In each of these contracts there is no further description that it is the contract of the company than simply the designation of Mr. Ward as general agent. He describes himself repeatedly; but everywhere through the contract, the contract shows that he individually, while the general agent of this company, is making an individual contract with this plaintiff. And when we come to exhibit “B” we find that it is an individual contract of his, purporting to be nothing more, and signed by him alone, without any designation of agency or otherwise, and without any description of himself. It is simply Hubert H. Ward and Samuel Bigger describing themselves in signing this paper. So it seems to me that these three exhibits, containing the whole contract as it is alleged, and all of them showing simply and solely the purpose upon the part of Ward to employ Bigger to take the under part with him and to be solely answerable to him, and to give bond to him and pay money and account for his collections to him, make simply an individual contract between Ward and Bigger, and not between Bigger and the company, and therefore Ward alone is liable upon this contract contained in these three instruments. If this -be true, he must be sued where he lives and not where the company can be found, and to sue the company in this county and issue summons to Cuyahoga county for Ward is simply to compel Ward to come into this county to answer to a suit on an individual contract, outside of his jurisdiction and where he has no right to be sued. He having made the contract and being alone liable upon it, is to be sued where be lives and be held to answer there, unless service can be had upon him in some other jurisdiction. So that I think the motion to dismiss for want of jurisdiction should be sustained.

The action will therefore be dismissed at the costs of the plaintiff, as to the defendant Hubert H. Ward.

The action was afterwards dismissed by the plaintiff as to the defendant insurance company.  