#### MAGNOLIA PETROLEUM CO. v. HAWKINS.

No. 3768.*

Court of Appeal of Louisiana. Second Circuit.

Nov. 18, 1931.

*589Thatcher, Browne, Porteous & Myers, of Shreveport, for appellant.

Pugh, Grimmet & Boatner, of Shreveport, for appellee.

*

Rehearing granted January 14, 1932.

TALIAEERRO, J.

Plaintiff sues to recover of defendant $348, alleged balance due for gas sold and furnished him during the months of May and June, 1928, under a written contract signed by plaintiff and by J. P. Hawkins, trustee, by J. R. Bevill, which is attached to and made part of the petition.

Defendant denies that he personally entered into a contract with plaintiff, as alleged, and avers that his dealings with plaintiff for the purpose of securing a supply of gas for fuel to drill a “wild cat” oil well were solely as trustee or agent of J. P. Hawkins Well Syndicate, a partnership in commendam. He admits that on behalf of said syndicate he posted a cash deposit of $500 with plaintiff before any gas was furnished and that after said deposit had been exhausted by consumption of gas the supply was cut off; that he was notified that an additional deposit was necessary in order to secure a further supply of gas, but that as said syndicate was not in a position to comply with this requirement he called on plaintiff’s agent, E. D. Holcomb, and advised him to that effect, and thereupon an agreement was reached between them whereby a sufficiency of gas to complete the well, then being drilled, would be provided, free of cost.

Exceptions of no cause of action were filed at time the case was called for trial, which were referred to the merits. The record does not disclose that these exceptions were specifically passed upon by' the trial court, but as judgment was awarded plaintiff it follows that the court considered them not well founded, and, in effect, overruled them.

In this court defendant insists upon these exceptions and complains of error on part of the lower court in not sustaining them.

It is argued that the exceptions should be sustained for two reasons:

First, that effort is being made to hold defendant personally liable on a contract signed by him as trustee or agent, without alleging facts and circumstances necessary to fix or justify, if true, personal responsibility; and,

. Second, that the contract sued on and attached to plaintiff’s petition fixes a period for its expiration by providing, “This contract shall continue in force until termination of deposit,” find argues that no right of recovery is vested in plaintiff for price of gas furnished to and consumed by defendant in excess of that paid for by the deposit of $500.

With regard to the second point argued for the exceptions, the contract, in paragraph 7, takes care of that contingency by the following language, viz.: Seventh. “That if gas is used by the party of the second part for a period of time beyond the expiration of the term mentioned herein, without further definite terms being agreed upon by the parties hereto, the condition and covenants of this contract shall extend through such period while gas is so used; bjit if gas is so used after the expiration of the definite term above specified this contract may be terminated upon written notice given either party to the other party.” The written contract contains a multitude of stipulations designed and intended to meet any contingency that might arise between the parties thereto, operating thereunder. There is no conflict between the excerpt from the contract quoted by and relied on by defendant and the provisions of paragraph 7, quoted above. All parts of a contract should be read together in its interpretation and effect given to it in its entirety, if possible. Defendant, or his company, could not accept gas from plaintiff in excess of that paid for by the original deposit and escape the obligation of 'being responsible for payment of its value. The contract is clear on this point.

We think the other point raised in the exceptions well taken. It is true, as argued by plaintiff, that under certain circumstances, one holding himself out in a representative capacity becomes personally .responsible to those with whom he contracts. One instance is where an agent fails to disclose the identity of his principal; another is where he exceeds his powers.

Plaintiff argues that defendant did not disclose for whom he was acting in his negotiations for gas and therefore there is personal responsibility on his part. Defendant’s reply to this argument is that, even if this be true, the petition contains no allegations to that effect, and, as the contract is signed “trustee,” which is admittedly the equivalent of “agent,” no cause of action is disclosed against him.

The party of the second part to the contract is declared to be “J. P. Hawkins, Trustee.” A receipt indorsed on the contract states that “J. P. Hawkins, Trustee,” has deposited $500 in cash. The contract was signed in like manner.

The petition positively alleges that defendant, through his authorized agent, J. R. Be-vill, executed the contract with plaintiff. This contract is made the basis of the suit. The petition is barren of’ any explanatory allegations which, if provens would be sufficient to fix personal responsibility against Hawkins, under the contract ini question.

It seems to us that in the present suit the contract sued on would not be admissible in evidence1 under the allegations of the petition. At least the variance between the allegations of the petition and the contract itself is fatal to the suit.

*590A petition in a suit based upon a written contract attached is controlled by the contents of the written instrument. If there is material variance between the two, the attached document will prevail: Abadie v. Berges, 41 La. Ann. 281, 6 So. 529.

In Shaw *&*Zunts v. Noble, 15 La. Ann. 306, it was held: “In actions upon contracts and deeds, if any part of the contract proved, or deed described should materially vary from the contract or deed, as stated in the pleadings, it will be fatal.”

“It is not necessary to recite the contract in haee verba, but if it be recited the recital must be strictly accurate. If the instrument be declared on according to its legal effect, that effect must be truly stated. If there be a failure in the one respect, or the other, an exception, for the variance, may be taken, and the Plaintiff cannot give the instrument in evidence.” Chief Justice Marshall in Sheehy v. Mandeville, 7 Cranch 208, 217, 3 L. Ed. 317; Davenport Locomotive Works v. Lemann Co., 118 La. 190, 42 So. 770.

In the case of Lafourche Transportation Co. v. Pugh et al., 52 La. Ann. 1517, 27 So. 958, it was held: “Where the sole cause of action stated in the petition is a contract alleged to have been made by the duly-authorized agent of the defendant, to permit the 'introduction of evidence of ratification by defendant by acquiescence in what such alleged agent has done is to allow the plaintiff to shift his ground, and recover upon a cause of action not alleged.”

Eor'the reasons herein assigned, the judgment appealed from is hereby annulled, reversed, and set aside, and plaintiff’s suit is dismissed as in case of nonsuit; all costs to be paid by plaintiff.