7 Wash. 391 | Wash. | 1893
The opinion of the court was delivered by
This action was brought to recover the value of certain shingle bolts alleged to have been wrongfully taken by the defendant, and converted to its use. The undisputed testimony showed that the bolts were taken by Larson and Luddington, and the vital question involved in the trial was as to whether or not, at the time of such taking, they were acting as the agents of the defendant. The defendant was the owner of a certain shingle mill, to which the bolts were taken by said Larson and Luddington, and there cut into shingles. The plaintiffs claimed that at the time the mill Avas being operated and controlled by the defendant. The defendant, however, claimed that it was not, and that said Larson and Luddington were operating said mill as lessees of the corporation, and that it had no control whatever over the question as to what bolts should be cut therein. The controversy growing out of these opposite contentions was the one upon which the verdict of the jury pi’obably turned, and we shall, therefore, confine our discussion to the questions connected thereAvith, as in our opinion the other questions suggested by the record will not arise upon a re-trial.
Defendant, to prove its contention as to this controversy, introduced two or three witnesses who testified to the fact that the mill was thus being operated by said Larson and Luddington on their own account as lessees of the defendant, and that such defendant had no connection whatever
The respondents seem to have attempted to meet the case made by the defendant upon this question by testimony tending to show that said Larson and Luddington conducted the business relating to said mill in such a way as to induce those doing business with them to suppose that the mill was still being operated by the corporation, but such fact could have no influence in determining the question under consideration. The court or jury were not called upon to decide as to what would have been the rights of one dealing with said Larson and Luddington, as between him and the defendant corporation. Such a person might be able to hold the defendant corporation responsible for what was done by reason of such a method of conducting the business, and its consenting thereto. But in the case at bar the plaintiffs are not claiming by virtue of any contract relation as between them and Larson and Luddington, or the defendant. Their claim is founded entirely upon the wrongful act actually done by said Larson and Luddington, and, such being the case, the defendant corporation could not be liable therefor, unless, as a matter of fact, it was connected with the tort. However much it might appear to have had such connection would be entirely immaterial, if, in fact, it had none. The tort was either committed' by it by some active participation therein in fact, or it was not committed. It could only be liable for the tort of said Larson and Luddington in the event of their acting for it or at its instance or in its behalf. No question of estoppel is raised by the record.
For the error in excluding the contract above referred to, the judgment must be reversed, and the cause remanded for a new trial in accordance with this opinion.
Scott and Stiles, JJ., concur;
Dunbar, C. J., and Anders, J., not sitting.