Hooper v. Flood

Department No. 2, Sharpstein, J.: This is an action for the foreclosure of five mechanics’ liens. Four of the persons claiming liens united in the action as original plaintiffs, and one of them was permitted to come in as an intervenor. Each of the original plaintiffs stated his cause of action in an independent count. To that we cannot perceive any serious objection.

The action is brought against Alexander Flood and James Irvine, and in the complaint it is alleged that Irvine is the owner of the premises affected by the liens, “ and that the defendant, Alexander Flood, was employed by said defendant, James Irvine, the owner as aforesaid, as his agent for a,nd in the said construction and erection of said buildings.” Afterward it is alleged that the plaintiffs entered into an agreement [220]“ with said defendant, Alexander Flood, as such agent of said defendant, James Irvine, for the delivery ” of the materials “ used in the erection of - said buildings.” This complaint was demurred to, on the ground, among others, of misjoinder of parties defendant, because said Flood' was not a proper or necessary party defendant in the action. The demurrer was overruled.

Assuming,- as we must, that the relations which -the several parties sustained toward each other are correctly stated in the complaint, we cannot avoid the conclusion that Flood was neither a necessary or proper party to -the action. He is alleged to have been the agent of Irvine; a fact which we are bound to presume, from the allegations of, the complaint, was well known to the plaintiffs when dealing with him. Upon what principle an agent who contracts for his principal can be held liable, either in connection with his principal or otherwise, passes our comprehension. By this, we mean an agent who is such in fact, and who really and ostensibly acts within the scope of his authority for his principal, as Flood did, according to the allegations of the complaint. If it were alleged that Flood was the “contractor, subcontractor, architect, builder,'or other person ” who had charge of the construction of. defendant Irvine’s buildings, we should be bound to hold Flood to be the agent of Irvine for the purposes of chapter 2, title 4, of the Code of Civil Procedure. The complaint, however, contains allegations which establish the relation of principal and agent between Irvine and Flood independently of that provision; and that provision does not make the persons who are to be held agents for the purposes therein specified, liable on .contracts negotiated by them for their principals, beyond what they otherwise would be. . As a contractor or subcontractor, Flood might be a proper party to the action. As a simple agent he is -not. The demurrer to the complaint on the ground above specified should have been sustained.