124 Cal. 225 | Cal. | 1899
This is an action for goods sold and delivered. The case was tried before the court without a jury, the defendant had judgment, and the plaintiff appeals therefrom and from an order refusing to grant a new trial.
During the years 1893-94 and 1894-95 Thomas L. Reed, then "farming from fifteen thousand to twenty-five thousand acres of land under cropping contracts, made an agreement with the defendant bank to furnish him (Reed) with “the money to do the work with and furnish the stuff to raise the crops.” Defendant took mortgages upon Reed’s crops, also upon his mules, et cetera, as security. At this time Reed was largely indebted to the bank, and it was agreed that the mortgages taken should secure the payment of this past indebtedness as well as the advances to be made during the year.
All of the crops, mules, and farming implements were turned over to the defendant, and it realized therefrom some fifty-six thousand or fifty-eight thousand dollars.
This action is brought to recover of defendant the price of the supplies furnished by plaintiff to Thomas L. Reed for these years—1893-94 and 1894-95—and which supplies have not been paid for.
Substantially the same agreement was made by the defendant bank with John R. Reed for the year 1894-95, Mr. Gosliner being present at the time. It was agreed to pay plaintiff for the supplies so furnished, every three months, with checks drawn by John R. Reed on the bank.
The supplies were purchased from plaintiff, and were used upon the ranches of John R. Reed for the purpose of putting in the crops which were mortgaged to defendant, all of which crops were delivered to defendant as agreed.
The supplies furnished for the first nine months were paid for with checks drawn by Reed on the bank; for the last three months they were not paid. It is sought in this action to recover from defendant for the supplies furnished during the last three months.
The Reeds received credit on the books of the bank for the
The contention of appellant on the foregoing facts is that the “defendant held out the Beeds to be their agents; that plaintiff believed that to be the fact, and that this belief was based and founded upon the acts of defendant, either intentional or negligent.” In support of this contention the appellant cites section 2300 of the Civil Code, which defines ostensible agency as follows: “An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.”
From this it appears that he who seeks to charge the principal with the act of an alleged ostensible agent must himself believe that the agent had authority as such from the alleged principal. (Harris v. San Diego Flume Co., 87 Cal. 526.) The fact that plaintiff, knowing the relations that existed between the Beeds and the bank, yet charged the goods to the Beeds and not to the bank, is strong, evidence tending to show that plaintiff did not
The plaintiff cannot recover from defendant on any theory that his furnishing the goods to the Heeds enabled them to grow, mature, and harvest the crop that defendant was interested in as mortgagee, and that thereby defendant received an incidental benefit from the goods furnished. To obtain judgment against defendant it was necessary for plaintiff to show the existence of a contract and promise, either express or implied, made in person or through an agent on the part of defendant to pay for the goods. The incidental benefit to defendant might have had some weight as evidence in connection with other circumstances to show the existence of such a contract, but was not sufficient, standing alone, to support a right of action for goods sold and delivered. (Clay v. Walton, 9 Cal. 328; Harris v. San Diego Flume Co., 87 Cal. 529.)
The findings of the court have ample support in the evidence produced at the trial.
We see no error prejudicial to plaintiff in the rulings of the court on the introduction of the evidence.
We advise that the judgment and order appealed from be affirmed.
Haynes, C., and Britt, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed. •
Henshaw, J., McFarland, J., Temple, J.
Hearing in Bank denied.