In several causes of action, one in his own right and the remainder as assignee of other parties, the plaintiff joins as defendants the Eastern Irrigation, Power & Lumber Company, a corporation, J. C. Bayer, its trustee, and Joseph R. Keep, and as to the action in his own right alleges:
“That between the twenty-seventh day of April and the sixteenth day of August, 1918, this plaintiff, at the special instance and request of defendants, performed labor, advanced money, furnished goods, wares and merchandise, and furnished a gasoline motor-truck for defendants in hauling machinery, a large steam boiler, iron and other miscellaneous articles, which said labor and money, goods, wares and merchandise furnished by said plaintiff were of the reasonable and agreed value of $1,029.43; that defendants received the use and benefit of said labor, money, goods,, wares and merchandise, and gasoline motor-truck so furnished, and promised and agreed to pay the said sum above mentioned.”
This form of averment is employed in all the other counts, the difference being only in dates and amounts and statement of the assignment of the account to the plaintiff.
The defendant Keep traversed all the allegations of the complaint except as stated in his further answer. In view of the grounds of our conclusion, it is not necessary to notice the further and separate answers of the defendant Keep more than to generalize that they aver payment to the plaintiff of enough *315money to cover the claims mentioned in the complaint, both his own and those of his assignors; and finally that “neither of the other defendants above named had anything to do with the employment of the parties alleged in plaintiff’s complaint to have been employed.”
The company and Bayer content themselves with a traverse of the allegations of the complaint.
The reply puts in issue the new matter in Keep’s answer.
In various forms in the course of a trial by jury the defendants raised the question that the evidence to the effect that Keep promised to give a certain per diem wage to some of the employees mentioned in the pleadings was a variance from the allegations of the complaint and hence incompetent, irrelevant and immaterial. The averment in that respect is, that at the special instance and request of the defendants plaintiff performed labor “of the reasonable and agreed value” of the amount named in the complaint. The most that can be said of this allegation is, that it was duplicitous and if the court had been applied to in the proper manner, the plaintiff would have been compelled to elect whether he would proceed on the quantum meruit or reasonable value of the services, or upon the express contract to pay a certain amount: Harvey v. Southern Pac. Co., 46 Or. 505 (80 Pac. 1061); Whitten v. Griswold, 60 Or. 318, 324 (118 Pac. 1018).
Construing the complaint favorably after verdict, we have a pleading in which the plaintiff avers enough for an action on quantum meruit for services rendered at the special instance and request of the defendants. Under such circumstances he would have a right to offer evidence of an express con*316tract fixing the price. The authorities on this point are collated in Toy v. Gong, 87 Or. 454 (170 Pac. 936).
The principle is, that under an allegation on the quantum meruit, evidence that the defendant promised to pay a fixed price will be construed as an admission against his own interest that the sum mentioned is the reasonable value.
At the close of the plaintiff’s case, the defendants moved for a nonsuit on the ground, among others, that the contract proved is not the one alleged in the complaint. The evidence disclosed that at a meeting held in Portland, Oregon, on November 3, 1917, the board of directors of the defendant corporation after reciting that there was need to develop a fund for the benefit of the company for certain purposes, and that there was some extra machinery at the company’s mill in Wasco County, passed a resolution as follows:
“Therefore be it resolved that the trustee, J. C. Bayer, be and he is hereby authorized and directed to dispose of such of the machinery belonging to this company as can be disposed of without injury or detriment to the machinery to be used at the mill now constructed, in such manner as deemed by said trustee to be for the best interests of this company, and that a copy of this resolution shall be sufficient authority for all the purposes herein contemplated.”
The record of this meeting of the directors is signed by the defendant Keep as president and one Skinner as secretary.
There was also introduced in evidence a letter from Bayer, trustee, addressed to the defendant corporation and to Keep, its president, under date of November 6, 1917, reciting the passage of the resolution just mentioned and saying:
*317“I have authorized Joseph E. Keep, president of your company, to get together and dispose of the above mentioned machinery to the highest bidder. Money for same to be turned over to me as trustee, to be disbursed by authorization of your board.”
It appears in evidence that the defendant corporation had issued bonds and given a mortgage to Bayer as trustee to secure the payment of those obligations, so that really he was the nominal mortgagee holding the encumbrance on the company’s property. Under the circumstances detailed, the defendant Keep, as the testimony shows, took up not only the matter of disposing of the machinery mentioned, but also an enterprise of conducting water to the company’s mill by means of a ditch, and employed the plaintiff Fischer and some of those named as his assignors. With one accord all of these parties testified that they were working for Keep. There is no testimony showing in any way that Keep mentioned the defendant corporation or assumed to act for it or in its name, or that he in any way disclosed the existence of the company. For instance, the witness William Engle testified, “I understood we were working for Mr. Keep.” C. P. Doyle, another assignor, was asked, “By whom were you employed?” and answered, “By Mr. Keep.” The result of the testimony is, that the defendant Keep contracted on his own responsibility. Under no view of the testimony can it be said that the defendants acted jointly, yet that is the averment of the complaint. It does not follow that because Keep happened to be president of the defendant corporation he was compelled to or did act as its agent. For aught that appears in evidence, he was acting as a contractor. Concede as we may, that he renders himself personally liable by contracting in his own name without dis*318closing Ms principal, under the authority of Frank v. Woodcock, 72 Or. 446 (143 Pac. 1105), yet there is another principle equally potent, wMeh is thus stated in 2 O. J. 843:
“While a person who has dealt with the agent of an undisclosed principal may elect to hold either the agent or, upon discovery, the principal, he cannot hold both, and, if with full knowledge of the facts material to his rights he elects to hold the agent, he thereby discharges the principal; and conversely, if he elects to hold the principal, he thereby discharges the agent. He must elect between the two, and when an election is once made he must abide by it, unless the principal and agent have by their acts waived the right to claim that an election to hold one releases the other.”
The most that can be predicated of Bayer’s connection with the matter is that as mortgagee he consented to the sale of some of the property of the mortgagor. All that the testimony shows respecting Keep is that he assumed to act independently in the matter without disclosing his connection with the corporation and employed the plaintiff and his assignors to perform certain services respecting the property of the defendant company, when in fact all that he was authorized to do was to dispose of machinery to the highest bidder. The plaintiff and his assignors do not claim in their testimony that they looked to or attempted to charge either the company or Bayer, but, as stated, all testified that they were employed by Keep. The effort to prove the allegation that the defendants were joint contractors utterly failed.
The motion for a nonsuit should have been allowed as to the defendants Bayer and the corporation. The case made by the testimony comes clearly within Sections 180 and 181, Or. L.:
*319§ 180. “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves.”
§ 181. “In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, whenever a several judgment is proper, leaving the action to proceed against the others.”
As to the performance of the services, the assignment of the claims to the plaintiff and their reasonable value, there was enough to take the case to the jury as against the defendant Keep. The judgment therefore will be reversed and the cause remanded to the Circuit Court with directions to enter judgment against the defendant Keep on the verdict, and a judgment of nonsuit as to the other-two defendants.
Reversed and Remanded “With Directions.
McBride, Harris and Rand, JJ., concur.Objections to cost bill sustained in part December 19, 1922.