39 Wash. 122 | Wash. | 1905
Between the 27th day of February and the 7th da.y of May, 1903, the defendant Furuya furnished to the Northern Pacific Railway Oompany a number of Jap>anese laborers, who were engaged in the construction of a drainage ditch for the railway company, near Wickersham,
Between the 27th day of February and the 28th day of March, 1903, the plaintiffs in this action sold and delivered to said Matsumoto, for the laborers above mentioned, goods, wares, and merchandise, of the value of $250, Matsumoto representing to the plaintiffs, at the time of sale, that he was the agent of the defendant Furuya, and that Furuya would pay for the goods so furnished at the end of the month. About the end of the month, the account not having been paid, Haner, one of the plaintiffs, called at the store room of the defendant Furuya, in the city of Seattle, and made inquiry in regard to the payment of this account. He was referred to room 7 upstairs, and there inquired for the agent of the defendant Furuya. A person in charge of the office responded to his inquiry, and Haner informed him of the nature of the account, and the circumstances under which the goods were sold to Matsumoto. Haner was assured that the account was all right, and would be paid by Furuya at the end of the month. With this assurance, Haner returned home, and the plaintiffs continued to furnish goods to Matsumoto until the account run up to the amount set forth in the complaint. About the latter part of April, one of the plaintiffs’ employees again called at the place of business of the defendant Furuya, in regard to the account, and was again referred to room 7 upstairs. He was there informed that the books were not ready. The sale of the goods to Matsumoto, their value, and the nonpayment of the account are admitted. The only question at issue was the agency of Matsumoto, or his authority to bind the defendant
Counsel for appellant, in an affidavit filed in support of a motion for a new trial, and in his argument in this court, frankly admits that he assumed, throughout the trial in the court below, tbat room 7 above tbe appellant’s store room, to which tbe respondents were referred for information relating to the account in suit^ was in fact one of tbe departments of tbe appellant’s business. Tbe court below so assumed and so found, and tbis finding is amply supported by tbe testimony. If tbis were true, there can be no question tbat the authority of Matsumoto was so far recognized and acquiesced in by tbe authorized representatives of tbe appellant tbat it would be a gross fraud to now permit tbe appellant to repudiate bis acts.
Tbe main contention of the appellant appears to be that he filed certain affidavits in support of bis motion for a new trial, which were not controverted, and tbat this court should assume tbe facts stated in these affidavits to be true, or order a new trial. From these affidavits it appears tbat the contract under which tbe appellant furnished laborers to tbe railway company was assigned to a corporation, known as tbe “Construction and Maintenance Company,” on tbe 2d day of March, 1903, and tbat room 7 upstairs, to which tbe respondents were referred, was in fact tbe office of tbe Construction and Maintenance Company, and tbat tbe appellant bad no connection therewith except as a stockholder in tbe corporation.
While counsel was perhaps excusable in not ascertaining these facts before tbe trial, the appellant and bis general manager were not. It is true, the appellant was absent in Japan, and bis general manager made affidavit tbat be did not know tbat tbe Construction and Maintenance Company was a corporation, until after tbe trial. But tbis general manager bad full charge of all business of tbe appellant
