
    John Z. Lull v. Anamosa National Bank and C. S. Millard, Appellant.
    3 Agency: estoppel to deny authority One who receives the beneheial results of a contract made in his behalf by another cannot deny the authority of the person making it.
    
      2 Undisclosed Principal: liability of agent. An agent who acts for-an undisclosed principal is individually liable on his promise, though he aferwards disclose the principal’s name.
    5 Same. Where an agent acts in behalf of himself and an undisclosed' principal, both are liable on the contract.
    1 4 Contraéis: consideration: Illegality.- An agreement by a national bank to pay taxes on its stock transferred to it, and assessed at the time against the sellers, in consideration of being allowed to-retain unpaid dividends and surplus, is not illegal, although the taxes are not properly assessed.
    7 Understanding. Code, section 4617, providing that “when the terms - of an agreement have been intended in a different sense by the parties to it, that sense is.to prevail against either party in'which he had reasoh jto suppose the other understood it,” applies to • express contracts.
    9 Joint and Several Judgments: actions ex contractu and ex delicto. The rule that if plaintiff maintains his action against one of the several defendants he may have judgment against that, one, and the other defendants may have judgment against plaintiff for costs, is alike applicable to actions ¿cr contractu and ex-delicto.
    
    
      Harmless Error: instruction too favorable. A defendant canno t 6 complain of an instruction which casts on the plaintiff more of a burden than he should be required to assume.
    Misjoinder: waiver of objection: Motions. Unless a misjoinder of parties is taken advantage of by motion the objection is 8 waived.
    
      Appeal from J ones District Court. — Hon. W. Gr. Thompson, ' Judge.
    Tuesday, February 6, 1900.
    Action at law to recover the amount of taxes assessed against certain shares of stock held by plaintiff and his assignors in defendant bank under and by virtue of a contract between plaintiff and defendants for the sale thereof. There was a trial to a jury, resulting in a verdict and judgment for plaintiff, and defendants appeal.
    
    Affirmed.
    
      M. W. Her rich, Ellison, Ercanbrach & Lawrence,-and. Smith & Smith for appellants.
    
      Jamisoñ & Smyth, W. D. Sheean, and B. H. Miller for appellee.
   Deemer, J.

2 At the time the matters occurred out of which this controversy arose there were two banks in the towu of Anamosa, — one of them — -private, owned by L. Schoonover; and the other a national bank, owned by plaintiff, defendant' Millard, and others. The national bank had not been making money, and some of its stockholders became dissatisfied with the amount of dividends declared. The Schoonover bank was making money for its owner, but he was advanced in years, and desired to retire from business. Defendant Millard, who was cashier, as well as a stockholder, of the national bank, conceived the idea that it would be a good financial stroke to buy the Schoonover bank, and mentioned the same to plaintiff, who is his father-in-law, and to others interested in the bank. Plaintiff did not look •with, favor on the proposition, thinking that it involved too :much responsibility. Certain friends of Millard, living in .Dubuque, were interested in the matter, and concluded, as we understand it, to join with Millard in effectuating the purchase. At the January, 189'/, meeting of the board of ■directors of the national bank, after transacting the usual 'business, they transferred two hundred and fifty dollars to the surplus fund, and struck a dividend of five hundred dollars, leaving less than, one hundred dollars of earnings unappropriated. The question of buying the Schoonover bank then came up, and plaintiff and some of the other stockholders said they would not agree to do it, but-would sell their .stock, amounting to twenty-four thousand dollars. Their proposition to sell was' accepted by Millard. Plaintiff and-■the other stockholders first agreed to accept in payment of their stock notes and securities held by the Schoonover 'bank, and something like two hundred thousand dollars in ■securities belonging to that bank were submitted to them f or .acceptance. When making the selection, a dispute arose between Millard and the plaintiff regarding the interest .-account on the securities, one claiming that the notes should be taken at their face value, and the other that accrued interest should be added. Plaintiff finally agreed to take the notes with interest added, but was unable to- find enough of the Schoonover securities that were satisfactory. Millard then proposed that plaintiff and others, who- were selling their stock, should select enough of the securities of the national bank to make up the balance of the purchase price, which was accordingly done. A contention arose regarding the value of the stock held by plaintiff and others who were proposing to sell, and also as to the undivided profits, but it was finally agreed that the stock should be taken at its par value. And on the one hand it is insisted that, in consideration of plaintiff’s relinquishment of his claim to the accrued interest on the securities and undivided profits and surplus, defendants agreed to pay the taxes assessed against the stock transferred to them; while-on the other it is contended that Millard refused ■ to pay more than par for the stock, and refused to pay, the-taxes, because the small amount of surplus then in the bank, was likely to be swallowed up in losses that the bank might sustain from securities that were then counted as good. It appears that prior to the year 1897 the taxes on the stock of the national bank had been assessed to and paid by the-bank. Not long after the plaintiff and those with whom he acted had transferred their stock, the bank paid the first installment of taxes assessed against the stock for the year 1896, but, subsequently learning that this was not the proper-manner of assessing the tax, the bank made application to* the county treasurer for a refund of the taxes so paid, which was granted, and the county officials then proceeded to assess-the individual shareholders of the bank on the amount of stock held by them on January 1, 1896, as shown by the-stock book. Plaintiff and those whom he represents were-compelled to and did pay the taxes so'assessed against the-shares of stock tk,at they had transferred to the defendants,.' amounting to the sum of four hundred and eighty-eight dollars, and thereafter commenced this action to recover the-amount so paid from the defendants above named, L. Schoonover, W. N. Dearborn, PC. P. Dearborn, George O. Lawrence, and M. Ohamplin, claiming that they had agreed, in consideration of receiving the surplus and undivided profits, to-pay the taxes assessed against the stock. The agreement to-pay the taxes is denied by the defendants. At the conclusion of plaintiff’s evidence all the defendants filed motions for a directed verdict. The motions were sustained as to all save defendants Millard and the Anamosa National Bank. It is-now insisted that it should have been sustained as to all the defendants. The grounds of the motion, in so far as the bank was concerned, are that there is no evidence to show that it was a party to the contract, or that Millard, or any -one else, had authority to bind it. As to Millard the grounds • are: First, “that.it is a joint action, and that there is no -evidence of joint liability, or of any liability, on his part;” .and, second, if there is any liability on his part, it is an individual liability, and that an individual judgment cannot be rendered against him in this action, because brought .against several defendants. Defendants argue that there is ~no sufficient evidence of a contract to justify the submission of the ease to a jury as to either defendant. An examination of the record discloses • sufficient evidence to justify the action of the trial court. Plaintiff and others testify to •■such a. state of facts and circumstances as would justify a jury-in concluding that such a contract was made. But it is sajd that Millard acted for a known and disclosed principal, and within the scope of his authority, and is, therefore, not individually liable. There was evidence to the effect that Millard refused to disclose Fis principal when dealing with the plaintiff and those whom he represents. The stock was assigned in blank, and ■delivered to Millard. Under this state of the record it is -clear that defendant Millard, was personally liable on his promise. True, there is evidence to the effect that he after-wards disclosed the name of his principal, but this was not •sufficient to relieve him. Stevenson v. Polk, 71 Iowa, 278.

Again, it is insisted that the bank is not- liable — First, because Millard was not authorized to act for it; and, sec~ •ond, because it could not lawfully authorize such a contract, ■even if made; and, third, because the petition counts on an -express contract, and there is no evidence to sustain any ■such averment. As to the first point, the jury may have found such authority from ratification of Millard’s acts in purchasing the stock. Surely Millard was authorized to ■take the securities belonging to the bank, and exchange them for the stock owned by plaintiff and others. Indeed, no ■complaint is made of his conduct in so doing. In making ffhe exchange, the jury may have found that he agreed to pay the taxes in virtue of the banks being allowed to retain the-surplus and undivided profits. If such agreement. was made, and partly performed, and defendant bank: had the benefits arising therefrom, it must also assume-the burdens of the contract. One who receives the beneficial results of a contract made in its behalf by another cannot deny the authority of the person making it. Wardnor, Bushnell & Glessner Co. v. Jack, 82 Iowa, 435; Eadie v. Ashbaugh, 44 Iowa, 520. Ratification is equivalent to-express authority, and may be proven under an allegation of express contract. Long v. Osborn, 91 Iowa, 160. There Avas nothing illegal or criminal in the bank’s-promise to pay the taxes in consideration of being-allowed to retain unpaid dividends and surplus, although the taxes Avere'not properly assessed to the bank. Hershire v. Bank, 35 Iowa, 272. Further, it is contended that recovery should have been against Millard as an agent acting for an undisclosed principal, or against the bank as principal, and not against both. A sufficient ansAver to> this contention is that Millard acted not only in-behalf of his bank, but glso for himself, as he held a part of" the stock obtained under the contract, and had the benefit: thereof. Aside from this, hoAvever, the defendants do not plead election or estoppel, and it may -well be doubted whether, without such plea, the question of the principal’s liability, where the agent is also sought to be held, can bodetermined. In any event it is a case against an undisclosed’ principal, and there may be liability of both principal and’ agent in such cases. Mechem, Agency, section 695.

II. The court instructed the jury that, if they found' plaintiff and his assignors “agreed to sell the said shares of stock, and take in payment therefor notes and mortgages of" the Anamosa National Bank and the accrued interest: thereon; and you further find that said Millard received the-said- shares of stock; and you further find that as a part of the consideration for the shares so purchased, and as a part. of said agreement, said Hillard agreed to pay the taxes, levied and assessed against the said stock for the tax of. 1896, — then yon are warranted in finding a verdict-in favor of the plaintiff.” This instruction is said to-be erroneous for the reason that there is no evidence-that plaintiff was to have the accrued interest on the securities. This is true, and there is no claim in the petition that such was the case. The instruction, although erroneous, was-not prejudicial to the defendants, and they cannot complain. It cast upon plaintiff mo-re of a burden than he was required to assume, but he is-the only one who may complain of it.

III. Plaintiff pleaded an express contract on the part-of defendants to pay the taxes on the stock, and it is said that there is no evidence to support the allegation. We are satisfied there was such evidence. The court instructed the jury in this connection as follows: “(1) 'You are-instructed that the statutes of this state provide that, ‘when the terms of an agreement have been intended in a differem; sense by the parties to it, that sense is to. prevail against either party in which he had reason to- suppose the other understood it’ (Code, section 4611), and this statute applies-to verbal contracts as well as written, and in this case, m determining whether a contract was made relating to the taxes in controversy, you have the right to apply the provisions of this statute to the parties in this case.” Claim-. is made that the statute quoted has no reference to express contracts. We have heretofore held to- the-contrary. See Cobb v. McElrey, 79 Iowa, 603; Pierson v. Armstrong, 1 Iowa, 282. There is no evidence of any express authority fro-m the bank to Millard to purchase-plaintiff’s stock, but we think there was sufficient evidence of ratification to make the bank liable for the contract made-by Millard, its cashier. This contract,- as we have said, was for the benefit of. both the bank and Millard, and there was evidence tending to- show that the bank ratified it.

IY. As to the claim of misjoinder of parties and of causes of action, it is now settled that a misjoinder must be .taken advantage of by motion. ' If the pleading is not so attacked, the objection is waived. Flynn v. Railway Co., 63 Iowa, 490; Miller v. Railway Co., 63 Iowa, 680. If plaintiff maintains his action against one •of several defendants, he may have judgment against that one, and the other defendants may have judg.■•ment against plaintiff for costs. The rule is alike applicable to actions ex contractu and ex delicto Boswell v. Gates, 56 Iowa, 143; Eyre v. Cook, 9 Iowa, 185; and Code, sections 3465, 3547, 3548, 3773. Barnes v. Ennenga, 53 Iowa, 497, relied upon by defendants, was modified by this court in Boswell v. Gates, supra.

Some • other matters are discussed by counsel, but they : are either disposed of by what has been already said, or are not regarded,as controlling. There is no prejudicial error :in the record, and the judgment is affirmed.

Granger, C. J., not sitting.  