No. 14120 | Wash. | Oct 15, 1917
The purpose of this action was to recover damages claimed to have been sustained by the plaintiff by reason of the purchase from the defendant of a quantity of automobile tires. The cause was tried to the court without a jury, and resulted in a judgment in favor of the plaintiff in the sum of $3,834.56, from which the defendant appeals.
The facts are these: The appellant is a corporation organized under the laws of the state of New York, with offices at 1789 Broadway, in New York city. This corporation is engaged in the business of rebuilding and selling automobile tires. On February 29, 1916, appellant contracted with one E. P. Janes to sell him a certain number of automobile tires per month during the life of the contract, Janes to act as a jobber. On March 17, 1916, Janes contracted with one Thomas Joyce, a resident of Spokane, to act as jobber for the Akron tires in the state of Washington. On the. 7th day of April, 1916, Joyce, by written contract, sold to the respondent a quantity of Akron tires and received at the time twenty-five per cent of the purchase price, or $750. The respondent did not know of the contract between the Akroii Tire Company and Janes, nor of the contract between the latter and Joyce. He ordered the tires, as he thought, from the Akron Tire Company, the appellant. Joyce transmitted the order to Janes, or to the Akron Tire Company, and after it was received, the Akron Tire Company took from its shelves tires and shipped them direct to the respondent. The
The controlling question in the case is whether Joyce was in fact the agent of the Akron Tire Company, or, to state it otherwise, whether Janes was a mere figurehead acting in the capacity of a broker for the purpose of shielding the tire company from claims for damages from customers to whom its worthless products had been sold. The trial court sustained the claim of agency and repudiated the thought that Janes was an independent jobber. It is admitted that Joyce was the agent of Janes. The officers of the Akron Tire Company, and also Janes, testified by depositions, and if effect is to be given their mere words, Janes was an independent jobber. • As against these mere words are certain acts, some
On April 15, 1916, and before the tires had been received by the respondent, he addressed a letter to the Akron Tire Company at its offices in New York, making certain inquiries with reference to the Akron tires. This letter was received by one of the officers of the tire company and handed by him to Janes. On April 20, 1916, this letter was answered, and signed “L. M. Pellner, Priv. Sec’y.” It is on the stationery of the Akron Tire Company, and does not disclose to whom Pellner is private secretary. On the upper left-hand corner of the envelope in which it was inclosed, above the cut of a building designated as that of the Akron Tire Company, appears this in typewriting: “Mr. E. P. J.” At this time the respondent had no knowledge of Janes, and neither “Mr. E. P. J.,” nor the signature to the letter, disclosed to him that it came from other than the Akron Tire Company. Janes testifies that he wrote the letter, and that it was signed by his private secretary, because on some days he had so much business and so much correspondence that he did not have time to sign letters personally. Yet he was doing this business, as one of the officers of the Akron Tire Company testified, in an office for which he was paying about $10 per month rent. There are other facts which might be recited as tending to show that Janes was a mere figurehead and not an independent jobber.
“. . . a cunningly devised scheme to put Mr. Janes up as a figurehead to take the brunt of any shortcomings of the company, and throw the blame onto him in case any trouble arose.”
The appellant’s brief characterizes this conclusion of the trial judge as a product of his imagination, but we think that it is a reasonable inference to be drawn from the facts. The finding that Janes was the agent, or a mere figurehead to protect the company from trouble, in our opinion, is amply sustained by the evidence. The trial court disbelieved the oral testimony of the officers of the company and of Janes, and in this we think he was right.
The appellant contends that, in any' event, it should' not be liable for two items of damages. One is the $706.19 that was paid to Joyce on the second contract, but we think this contention is without merit. If Joyce, through Janes, was acting for the company, as we have already found that he was, a payment to him was in effect a payment to the company. He was authorized by his contract to collect this portion of the selling price. The other item is that of the damages which the respondent claims to have sustained by reason of fitting up a place of business and preparing to sell the tires when they should arrive. For this purpose he rented a storeroom, fitted it with fixtures, caused circulars and advertising matter to be printed, bought envelopes and had them addressed. He testifies that the fixtures cost him something like $60, and the advertising matter and envelopes, $150 or $200. In summing it up, he says:
“In hiring help and fixing up the place and directing the envelopes I must have spent over five hundred dollars, or in that neighborhood. I cannot give it definitely.”
This evidence was not sufficient to sustain a judgment for damages for the items there covered. There is no evidence that the'outlay made for the various purposes was the rea
• The cause will be remanded with direction to the superior court to enter a judgment in favor of the respondent in the sum of $3,334.56. The appellant will recover costs in this court.
Ellis, C. J., Fullerton, Morris, and Chadwick, JJ., concur.