DISSENTING OPINION.
ALLEN, J.I am unable to concur in the majority opinion herein which I think is in conflict with our decision in this case on the former appeal.- [Griswold v. Haas, 145 Mo. App. 578, 122 S. W. 781.] It was there held that if the defendant contracted for the purchase of the bonds in the name of his supposed principal, but without authority, he did not thereby bind himself as purchaser, and could not be sued upon the contract. Such ruling appears to accord with prior decisions of our courts, and to be in line with the weight of authority on the question involved.
*104I -understand, the rule to be that if an agent contracts for and in the name of a disclosed principal, expressly or by his acts asserting authority when in fact none exists, an action will not lie against him on such contract, but he is liable to respond in damages for his wrongful act in assuming to contract for 'another without authority. It was so held in Griswold v. Haas, supra, following the authorities there referred to; and see Byars v. Doores’ Admr., 20 Mo. 284; Wright v. Baldwin, 51 Mo. l. c. 272; Hotel Co. v. Furniture Co., 73 Mo. App. l. c. 138; 1 Mechem on Agency (2 Ed.), sec. 1398, where many cases are collected in footnotes. The appropriate remedy is said to be an action on the case for fraud and deceit, though the tortious feature of the case may be waived and the suit proceed in assumpsit as for a breach of the express or implied warranty of authority. [See authorities, supra.]
While the majority opinion does not in terms controvert this, it sanctions a recovery by plaintiff of the unpaid portion of the purchase price upon delivery of the bonds to defendant. In effect it allows a recovery against the defendant on the contract. If an action could have been maintained against defendant as the vendee, for a breach of the contract of sale, doubtless one remedy available to plaintiff would have been to hold the bonds for defendant, tender them, and sue for the unpaid portion of the purchase price. I do not perceive how this course can be sanctioned upon the theory of a recovery of damages for the alleged wrongful act of defendant, the agent, in assuming to act without authority.
The statement filed before the justice of the peace was perhaps intended to state a cause of action for damages, for a wrongful assumption of authority by defendant. But it does not appear that plaintiff has shown any damage suffered. The loss entailed, if any, could have been ascertained by a resale of the bonds. I perceive no reason why this could not have *105been done, nor any reason for making an exception to the rule above stated because of the fact that the sale was by a commissioner. Certainly the record does not disclose any effort to ascertain the damages recoverable in an action of the character such as this court held to be the appropriate remedy, when the case was here on the former appeal. And I think the error is here one materially affecting the merits of the action, and affecting the substantial rights of the appellant, and that therefore sections 2082 and 1850', Revised Statutes 1909, cannot be invoked to sustain the judgment.
There are other questions here, but under the circumstances it is unnecessary for me to discuss them. I dissent from the conclusions reached by my associates, and as I deem the decision herein to be contrary to the decisions of the Supreme Court in Byars v. Doores’ Admr., 20 Mo. 284; Wright v. Baldwin, 51 Mo. l. c. 272; and to the decision of the Kansas City Court of Appeals in Newland Hotel Co. v. Furniture Co., 73 Mo. App. 135, I ask that the case be certified to the Supreme Court for final determination by that tribunal.