Wentworth v. Winton Co.

HARRIS, J. The trial court ruled that the defendant was liable for the rent for the month of February, but that it was not liable for the rent for the month of January. The first cause of action, which relates to the rent, proceeds on the theory that it was agreed between the two corporations that in consideration of the termination of the agency the "Winton Company would take over the lease and assume the payment of the rentals “from and after the first day of January, 1913.’ The written contract does not say that the defendant shall pay the rentals from and after January 1, 1913. This paper, it will be recalled, was signed by the Oregon company on or about January 15, 1913, and then delivered to Gr. W. Miller so that he could forward it to Cleveland, Ohio, for the signatures of the officers of the Winton Company. "When the Oregon company signed the paper it was dated January, 1913, but there was an unfilled blank for the day of the month. When the officers of the Winton Company signed they filled — 546 — the blank and dated the instrument February 1, 1913. The plaintiff claims that Miller, acting for the defendant, and the Oregon company agreed1 when the latter signed the contract that the Winton Company would pay the rent from and after January 1st. If the defendant is liable at all for rent for the month of January, it is liable only because of the agreement which Miller attempted to make. Miller was the manager of the “factory branch at Seattle, Washington.” The Winton Company sent him to Portland to negotiate for a settlement of the differences which had arisen between the two corporations. On November 19, 1912, Miller wired to the Oregon company: “Have taken up with factory matter of taking over your plant but have been turned down cold. * * ” On November 30, 1912, Miller wrote to the Oregon company a letter which opens thus: ‘ ‘ Confirming a talk I had with your Mr. Ettinger regarding what the writer, personally, would be willing to do, which talk or action must be verified by our home office at Cleveland. “I would state that it would be satisfactory to assume the lease on the building you now occupy, known as the Winton Building, with the understanding that the rent of this building is $300 per month with the privilege of subleasing any part of the rooms now occupied by other tenants.” After discussing certain details the letter concludes with the following paragraph: “ It is distinctly understood that this is not a proposition ; it is only a line of suggestion for you either to accept or reject and for me to take up with the home office. ’ ’ 1, 2. Thus it is seen that, while the Oregon company was dealing with Miller as a known agent of the Winton — 547 — Company, nevertheless the Oregon company was in no position to assume that Miller’s agency was general, because' the Oregon company had information to the contrary: Leavitt & Co. v. Dimmick, 86 Or. 278, 288 (168 Pac. 293); Hillyard v. Hewitt, 61 Or. 58, 62 (120 Pac. 750); Aerne v. Gostlow, 60 Or. 113, 121 (118 Pac. 277). Miller had authority to negotiate for the Winton Company but he was without authority to bind it. The Oregon company was told by Miller in express words by the letter of November 30th, that he had no authority except to negotiate; and the fact that the written contract, after having been signed by the Oregon company, was delivered to Miller to be forwarded to Cleveland, Ohio, there to be signed by the officers of the defendant was of itself an indisputable acknowledgment of Miller’s lack of authority to bind the Winton Company. It is possible that, independently of the agreement with Miller, the defendant is liable for the rent at least from January 16th, because of the alleged fact that the premises were turned over to and received by the defendant on that day; but, if there is such a liability, it cannot be enforced in this action on the present complaint for the reason that the plaintiff is here seeking to enforce liability solely upon the agreement of Miller. The findings and conclusions of the trial court concerning the rent must be approved. 3. The plaintiff contends that the findings of fact which relate to the second cause of action do not support the conclusions of law deduced by the court. Finding V, which is the first finding connected with the alleged conversion of the personal property, is to the effect that the portion of the property “that was not purchased by the Winton Company under the contract aforesaid was left in charge of the Portland branch of the Winton Company by direction of Gf. W. — 548 — Miller, manager of the Seattle branch, with the understanding that subsequently the said O. W. Miller would take up the question of the purchase of the balance of said property with said Portland Motor Car Company from the Seattle branch.” In finding YI, it is related that after the execution of the written contract terminating the agency “the Winton Company opened up a factory branch in the City of Portland, Oregon, in the premises described in the lease in said agreement mentioned, and advertised in the newspapers of the City of Portland that it had opened up a factory branch, with H. E. Eoberts as manager thereof, and issued its stationery and bill heads describing said business as a factory branch of the Winton Company in Portland.” Finding VII, the remaining material finding, reads as follows: “That subsequently said H. E. Eoberts returned to the plaintiff a portion of the property that had been left with the Winton Company aforesaid, but kept and retained the property described in the complaint herein, and used and consumed the same in carrying on said business of the said branch of said Winton Company, and said Winton Company had the use and benefit thereof, but denied that said H. E. Eoberts had any right or authority to take or convert said property or that it is liable therefor.” These findings may possibly be better understood if a brief account is given of additional portions of the record. The Oregon company maintained its sales department and garage and repair-shop in the leased building. The Oregon company had in its possession on consignment from the Winton Company certain “parts” which were kept in what one witness called the “parts-room.” At some time in 1912, either in November or December, H. E. Eoberts, representing — 549 — tlie Winton Company, took and retained possession of the “parts-room.” The plaintiff claims that the personal property purchased by the Winton Company together with the building was turned over to the Winton Company on January 16th, the next day after the Oregon company signed the contract, while the defendant insists that it took possession of the premises on February 1st. At any rate, whether the possession was delivered by the Oregon company on January 16th or on February 1st, it is conceded that whenever possession was taken it was taken by H. R. Roberts as the agent of the defendant. The Winton Company continued the business of selling automobiles, and it also continued to maintain a garage and repair-shop. The billheads used by the defendant referred to its place of business in Portland as-“Factory Branch.” Some of the letter-heads referred to the place of business as ‘‘Portland Branch” of the defendant. Roberts signed letters as the “Portland Mgr.” of the defendant; and it is not contended that he was without authority thus to sign letters. The tools and equipment purchased from the Oregon company by the Winton Company were purchased for use in the business which the defendant continued to maintain. Roberts hired the men employed in the garage and repair-shop. According to the testimony of A. J. Schaefer, who succeeded Miller as manager of the Seattle branch, Roberts did not have any authority “that he did not get from” the witness; and yet when asked whether Roberts had any authority “to buy such goods as are described in this complaint * * in a general way” the witness answered as follows: ‘ ‘ Oh, yes, in the ordinary conduct of his business he would buy such things as grinding compound, oils, gasoline, and tools for drill-presses, or anything of that sort, as they went out, and these bills were approved — 550 — by Cleveland, audited by Cleveland, and that is all. He wouldn’t have any authority to buy anything in bulk, or machinery, or even typewriters, or anything of that sort that pertained to the plant and equipment.” The complaint enumerates more than one hundred and forty items, and they include such tools and appliances as are ordinarily used in a garage or repair-shop, a few trade fixtures, an assortment of materials used in repairing automobiles, a number of automobile parts, and seven or eight office appliances, such as letter-trays, inkstands, a bill stamp, and the like. All of these articles were such as one would naturally expect to find in a garage or repair-shop. Most of the items were such as Eoberts, as manager, could have rightfully purchased from time to time for use in the garage or repair-shop, even though his authority be strictly measured by the limits fixed by Schaefer; and consequently on the finding that the defendant used and consumed all these items in carrying on its business and “had the use and benefit thereof” it is manifest that as to these items at least the plaintiff was entitled to a judgment. The items enumerated in the complaint vary in value from five cents, the price of certain cotter-pins, to $50, the price of five outside casings. It is clear that nearly all of the articles enumerated in the complaint were within the needs of the principal’s business and therefore within the scope of the actual or apparent authority of Eoberts, who was the managing agent of the defendant’s business during the period in which the articles were converted; and it may be that every one of the items was within the needs of the principal’s business: 2 C. J. 643, 644. It is difficult because of the condition of the record to do more than to hazard a guess at the value of the articles sued for; otherwise, we might attempt to fix — 551 — tlie values of all the articles and render a final judgment here, on the authority of Article VII, Section 3 of the Constitution. The judgment is reversed and the cause is remanded for such further proceedings as may not he inconsistent with this opinion. Reversed and Remanded. McBride, C. J., and Benson and Burnett, JJ., concur.