No. 87-414
TF THE SUPREME COURT OF THE STATEOF MONTANA 1988

HERMAN HUISENGA, d/b/a HUISENGA ADVERTISING, BILLINGS, MONTANA, Plaintiff and Respondent,-vsBRUCE PARKMAN, f/d/b/a SUN BURST MEADOWS & WHITNEY DEVELOPMENT COMPANY, Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District, Inand for the County ofYellowstone, The Honorable Robert Folmstrom, Judge presiding.
COUNSEL OF RECORD:
ForAppellant: Tipp, Skjelset,Frizzell & Buley; Raymond P. Tipp, Missoula,Montana
For Respondent: Robert E. LaFountain & Charles E. Snyder,Billj.ngs, Montana

Submitted onBriefs: Feb. 11, 1988 Decided: March 22, 1988 Filed: 

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### 4988Mr. Justice John Conway Harrison delivered the Opinion of the Court.

Bruce Parkman appeals a directed verdict entered against him by the DistrictCourt of the Thirteenth Judicial District, Yellowstone County,Montana. The court found that he was liable for $7,622.11 of debt incurred by his former employer,Whitney Development Co., a partnership involved in land development, and costs of $55.40. We reverse and remand. By the start of January, 1982,Parkmanwas the general manager at Whitney Development Co., but he held no ownership interest in the partnership. Herman Huisenga, an advertising consultant in Billings, had done considerable work for Whitney Development Co., which owed Huisenga's firm $13,122.11. When Huisenga learned that Whitney Development Co. was about to incorporateunder another name he approached Parkman,with whom he had been negotiating onpayment, with a memorandumprepared on Huisenga's letterhead. Thememorandum read: January 11, 1382
AGREEMENT TO COMPLETE ACCOUNT WITH HUISENGA ADVERTISING
DearMr. Huisenga,
To complete payment of our account due to you for Whitney Development Company of $13,122.11 on 12/31/81, we will pay you $1500on 1/12/82andmonthly payments of $1000 or more each month, with totalpaid by June 30, 1982. Signed,

Bruce Parkman

(s/DonaldR. Coverdell) Donald R. Coverdell Accepted, (s/H. R. Huisenga) H.R. HuisengaThe other signatory, Donald Coverdell, was a foreman for Whitney Development Co. and also had no ownership interest. Although the note is dated January 11, 1982, there is a dispute as to the date the notewas signed. Huisenga received $5,500 from Whitney Development Co. and its successor corporation, Sun-Sational DevelopmentCorp. When no further payments were made, Huisenga filed suit against Parkman to collect the $7,622.11 balance. A jury trial was held on August 3, 1987. Upon the completion of testimony,the court granted Huisenga's motion for adirected verdict reasoning that Parkmanwaspersonally obligated since he had signed the memorandum, which neither named Sun-Sational as a principal nor noted Parkman's representative capacity, as required by S 30-3-403(2)(a)

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# . Section 30-3-403,MCA, states inpart: (2) An authorized representative who signs his own name to an instrument:

(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;

(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity. On appeal we need only to determine,while viewing the evidence in a lightmost favorable to Parkman,whether a fact question for jury determination existed. Jacquesv. MontanaNational Guard (1982), 199 Mont. 493, 503, 649 P.2d 1319, 1325. If reasonable jurors could derive various conclusions from the evidence then a directed verdict is improper. Solichv. Hale (1967),150Mont. 358, 361, 435P.2d 883, 885. On the date the notewas drafted,January 11, 1982, the successor corporation Sun-Sational Development Corp. was not
even in existence. Articles of incorporation were signed on January 12, 1982 and the Certificate of Incorporationwas not issued by the Secretary of Stateuntil January 13, 1982. The actual debtor on January 11, 1982 was the partnership mentioned in the note. Therefore the requirements of S 30-3-403(2), MCA, were met and par01 evidence could be considered in establishing between the immediate parties whether or not the defendant signed in some type of representative capacity and that question should have been allowed to go to the jury. Parkman insisted that he had been a salaried employee, not apartner. He said he nevermeant to assume any personal obligationbut only to assureHuisenga that his bill would be considered and paid, if possible, by the new corporation. Parkman said he did not mention any agency capacity because he read the memorandum and did not believe it to be a personal guaranty. He added that the memorandum was signed
on January 14, 1982, after Coverdell returned from Helena with the Certificateof Incorporation. The court's directed verdict rests on the assumption that Parkman did sign the memorandum after the articles of incorporation had been accepted. There was evidence from Huisenga, himself, however, that Parkman signed before the articles of incorporation were accepted. Thus, a fact question arises and a jury could reasonably have decided that the memorandum was signed before the articles of incorporationwere filed. In that case,thememorandum wouldhave referenced the employer, Whitney Development Co., and the jury would be entitled to consider the par01 evidence to determine if there was an understanding that Parkman was signing as a representative. Accounts Management Corp. v. Lyman Ranch (Mont. 1987), 748 P.2d 919, 923, 44 St.Rep. 2233, 2237; Clarks Fork National Bank v. Papp (Mont. 1985), 698

Reversed and remanded.

we concur: 

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Mr. Justice John C. Sheehy did notparticipate.