
    SMITH et al. v. ORPHEUM AMUSEMENT COMPANY et al.
    No. 2360.
    Decided July 23, 1912
    (125 Pac. 684).
    Corporations — Officers—Liability—Evidence. Xu an action for-architects’ services in remodeling a theater for a corporation, evidence held to require a finding that defendants, who were officers of the corporation, in employing plaintiffs, acted for the corporation and not individually, and were therefore not individually liable for plaintiff’s services.
    Appeal from District Court, Second District; Hon. N. J. Harris, Judge.
    Action by J. A. Smith and another against the Orpheum Amusement Company and others.
    Judgment for plaintiffs against defendant J. H. Garrett alone. He appeals.
    REVERSED AND REMANDED POR NEW TRIAL.
    
      Gkistin, Gillette & Brayton for appellant.
    
      G. B. Hollingsworth for respondents.
   STRAUP, J.

The plaintiffs, partners in business, brought this action against the Orpheum Amusement Company, a corporation, and Scoweroft and Garrett, to recover a balance due for services rendered at the alleged instance and request of the defendants, in preparing plans and specifications for, and superintending the remodeling of, a theater building known as the Grand Opera House in Ogden, and thereafter known as the Orpheum' Theater Building. The case was tried to the court without a jury. At the conclusion of plaintiffs’ evidence the court granted a nonsuit. as to the Orpheum Amusement Company, and overruled a similar motion as to the defendants Scowcroft and Garrett. Upon all tbe evidence, the court found that tbe services were rendered at tbe special instance and request of Garrett alone, and rendered a judgment against bim alone. Garrett appeals.

He complains of tbe findings and tbe judgment. We think they are not supported by tbe evidence. Tbe court granted tbe nonsuit as to tbe Orpbeum Amusement Company partly because tbe motion apparently was not resisted, and partly upon tbe view entertained by tbe court that the services were not engaged by nor rendered for it. If tbe corporation was not itself liable, and if either of tbe defendants, Garrett or Scowcroft, were personally liable, it, upon tbe record, is difficult to understand on what theory tbe court found Garrett alone liable, for tbe evidence without dispute shows that tbe services were rendered equally at tbe request and direction of both. Tbe material and pertinent question in tbe case is whether tbe services were rendered at tbe request and direction of Garrett and Scowcroft as managers and officers of tbe corporation and for it, or for themselves in their individual capacity, or without a disclosure that they were acting for tbe corporation and not for themselves. We think tbe evidence, without substantial dispute, shows that tbe plaintiffs rendered tbe services for tbe corporation, and that they dealt with Garrett and Scowcroft as managers and officers of tbe corporation. Tbe plaintiffs alleged, and tbe evidence shows, that tbe Orpbeum Amusement Company was organized and created on the 19th day of April, 1909. On that day its articles of incorporation were filed. Scowcroft then, and at tbe time of the trial, was tbe president of tbe corporation, David 0. Eccles vice president, Garrett tbe secretary, and John Pin-gree tbe treasurer. Tbe remodeling of tbe theater building was done by tbe corporation, and for its use and benefit, and not for tbe individual use or benefit of Scowcroft and Garrett. There is not a scintilla of evidence to show tbe contrary. Scowcroft and Garrett engaged tbe services, of tbe plaintiffs to draw plans and specifications for and to superintend tbe remodeling. They did that on behalf of tbe corporation and for its use and benefit, and not for the individual use or benefit of either Scowcroft or Garrett. That also is undisputed. But one of the plaintiffs, Hodgson, claiifis that when the plaintiffs were first employed, and when they began the preparation of the plans and specifications, he did not know that the remodeling was to be done by the corporation ; that he understood it was for the benefit of Garrett and Scowcroft; and that Garrett first spoke to him about it, at two different times in March, the first time on the 12th, and the second about two weeks later, before the corporation was organized. He testified that Garrett then instructed him “to make measurements in regard to certain data relative to the desired results they wanted to accomplish in the opera house. No further work was done at that time, and the next meeting I had with Garrett was in company with Scow-croft (in June). At that time I was told to go ahead and remodel the opera house for an orpheum. I immediately returned to the office, and Mr. Smith (an employee of plaintiffs) and I proceeded forthwith to take the measurements of the opera house. Mr. Smith prepared the workings, and drawings, after which they were blue printed.” Thereafter the work was done and completed in October. Some of the plans and specifications bore the indorsements, made in plaintiffs’ office, “For the managers of the Orpheum Company.” P(ar-tial payments were made to the plaintiffs by check in the name, and signed by the treasurer of the Orpheum Amusement Company. Notwithstanding the indorsements, and the check which was received by Hodgson in July, he nevertheless testified that he, in August, had no knowledge thiat the work was being done by the amusement company. But Smith, his partner, also a witness on behalf of the plaintiffs, testified that he had knowledge that the work was done by the Orpheum Amusement Company, and for its benefit, and not for Scowcroft and Garrett, and that Hodgson, his associate, so informed him. Both Hodgson and Smith testified that, until they commenced their suit, neither had looked to nor asked either Garrett or Scowcroft for payment. Hodgson further testified that “throughout the entire transaction I never asked Garrett or Scoweroft to pay this bill individually, and at first I charged it to the managers of the Orpheum Company, and afterwards to the Orpheum Amusement Company when we learned the official name” of the company.

Smith, the other plaintiff, testified that the principal plans and specifications were prepared1 June 3, 1909. He was asked and he answered: “Q. Did you know there was an Orpheum Company at that time? A. Well, I didn’t make inquiry in regard what company — how the company was formed. I knew that Scoweroft and Garrett were behind it. Q. You knew there was a company though, did you? A. I knew they were in a company; yes, sir. Q. You knew that you were doing work for a. company? A. Yes, sir. Q. And' you knew that Garrett and Scoweroft were acting as managers of that company at that time? A. Yes, sir. Q. And you knew you were dealing with them as managers of the Orpheum Company at that time, didn’t you ? A. Yes. Q. How long before that time did you know about it ? A. I couldn’t say. Q. As a matter of fact, you knew about it all the time? A. I knew that there was a company, of course; that there was a company that was going to remodel it for the Orpheum circuit. Q. You knew there was a company organized for this when you were first approached on the subject? A. Yes, sir.” He further testified that before the plaintiffs commenced work he knew that Eccles, Scoweroft, Garrett, Pingree, and Roy Eccles were connected with the company, and that Garrett and Scoweroft acted as the representatives of some company, and that he obtained this information from his associate Hodgson.

Thus, considering the matter upon the evidence alone of the plaintiffs’ it clearly appears that they rendered the services for the corporation and not for Garrett or Scoweroft in their individual capacity. Nor is there any evidence to show that Scoweroft and Garrett, in their individual capacity, either by express promise, or impliedly, promised or agreed to pay for the services, or in any manner assumed liability for payment of them.

The judgment of the court below is therefore reversed, and the case remanded for a new trial. Costs to appellant.

FRICK, C. J., and McCARTY, J., concur.  