Aerne v. Gostlow

Mr. Justice McBride delivered the opinion of the court. Counsel for defendants concede that if Krull’s letters, consenting to a settlement by plaintiff with Gostlow, are binding upon the Guarantee Company, defendants are liable in this action. This, viewed from defendants’ standpoint, reduces the controversy to a single proposition, and we will so treat it. 1. In considering the findings of the circuit court on that subject, it will be borne in mind that, by Section 159, L. O. L., the findings of the court in an action tried by it without a jury are deemed a verdict, and therefore, if there is any evidence to sustain such findings, they are conclusive upon appeal. Fulton v. Earhart, 4 Or. 62; Hicklin v. McClear, 18 Or. 126 (22 Pac. 1057); Courtney v. Bridal Veil Box Factory, 55 Or. 210, 214 (105 Pac. 896). It is hornbook law that an agency cannot be proved by the declarations of the agent, and therefore the fact that Krull affixed the name of the company to the letters is not any evidence of his authority to do so. We are of the opinion, however, that there is in this record evidence, perhaps not of the most convincing character, but reasonably strong, which tends to show that Krull had authority to write the letters in question, or at least that defendant [120] had so held him out to plaintiff and the public, which amounts to the same thing. The question is not so much what actual authority Krull possessed, as what authority he apparently possessed; and persons dealing with the corporation were not bound to search its records to ascertain what limitations these placed upon his power to act, if it permitted him to hold himself out as an agent in charge of its bonding business. The testimony shows that he was occupying a desk in the general office of the company, and that when plaintiff went there and inquired of an employe for the manager of the bonding department he was directed to Krull’s desk, and that Krull was in the office of the company, and, assuming to act for it, wrote the letter in question upon one of the company’s letter heads. Kroner, the architect, testifies that he had occasion several times to look after bonding business with the company, and Krull always attended to the business. This witness stated that the company’s office was one large room, with several desks and tables, and usually two or three persons occupying the desks; that there were no signs designating any particular person or department of the business; and said that on another occasion he went with a contractor and inquired of one of the occupants for the manager of the bonding department, and was referred to Mr. Krull, who transacted the business. J. D. Mackie, representing one of the lien claimants, testified that he called at the office and told Mr. Hurlbutt, general manager of the company, that he wanted to speak to the man who had charge of the bonding department, and was thereupon introduced to Krull, who told him he would be protected. Subsequently he called again, and asked Hurlburt to fulfill this promise, and Hurlbutt told him he should have asked for Krull’s credentials. We are of the opinion that these circumstances are evidence that Krull was at least an ostensible agent of the [121] defendant company, and constitute some evidence of actual agency. The value and effect of it was for the lower court. Defendant company admits that Krull was an agent for the purpose of receiving applications for bonds; but this testimony indicates that his recognized powers extended beyond this. He is not in the position of a solicitor for insurance, who does business outside the office of the company. He was occupying a place in the office. Plaintiff and others were referred to him as the manager of the bonding department, and he transacted business with them as such. In many respects this case is similar to Haner v. Furuya, 39 Wash. 122 (81 Pac. 98). In that case Haner, the plaintiff, wishing to present a claim against Furuya for goods sold to a person who claimed to be his agent, called at Furuya’s place of business and inquired in regard to the payment of the account. He was referred by a person in charge of the office to room 7 in the building, and, on going to that room and stating to a man he found there the nature of his business, he was assured that the account was all right and would be paid. The court held that these facts were amply sufficient to justify a finding that the man in room 7 was an agent of Furuya. 4. Persons dealing with a known agent have a right to assume, in the absence of information to the contrary, that his agency is general. Methuen Co. v. Hayes, 33 Me. 169; Austrian & Co. v. Springer, 94 Mich. 343 (54 N. W. 50:34 Am. St. Rep. 350). These considerations render it unnecessary to discuss the other questions so ably presented by counsel. The judgment of the circuit court is. affirmed. Affirmed.