280 P. 543 | Cal. Ct. App. | 1929
This action was brought by the owner of a newspaper route to recover for advertising space in the "Los Angeles Times," claimed to have been purchased from him by the defendants. From a judgment for plaintiff one of the defendants, Mox, Incorporated, has taken this appeal.
There is no dispute as to the fact of publication of the advertisements or as to the amount of the bill therefor, but appellant contends that respondent was not an independent contractor, but a mere agent for "The Times," and hence that not he but the publisher of the newspaper was the real party in interest and, under the provisions of section 367 of the Code of Civil Procedure, the only party capable of instituting and maintaining the action. Appellant further argues a lack of evidence to support the finding that it ordered or agreed to pay for the advertisements.
[1] As to the first of these points, it appears without contradiction that respondent owned a "Times" route or, as it is referred to in the written contract between himself and the Times-Mirror Company, publishers of that newspaper, a "carrier service district or agency of the Los Angeles Times." This contract is silent upon the question of advertising, the agreement as to the handling of that part of the business being oral and as follows, according to the testimony of Mr. Denning, assistant credit manager and chief clerk of the Times-Mirror Company: The purchaser *533 and owner of such a route is to solicit advertising "at will," the "Times" charging all such advertising to the account of the route owner, who receives a percentage commission thereon. The route owner "is his own solicitor and his own credit man," with no right to extend credit on behalf of the newspaper. If the advertiser fails to pay, the loss is his, not that of the "Times," which knows "no one connected with the advertising except the agent himself." This, then, was the relationship with respect to advertising which existed between the respondent and the "Times." His was the responsibility for payment; to him alone was the credit extended.
"An independent contractor is one who, in rendering services, exercises an independent employment or occupation, and represents his employer only as to the results of his work, and not as to the means whereby it is to be accomplished." (Green v. Soule,
In Harris v. Clayton,
[2] Both by reason of statutory enactments similar to section 369 of our Code of Civil Procedure and on well-known principles of law it has been almost universally held that an agent who is liable to his principal for the price of the thing sold may institute in his own name an action for the purchase price. A typical case is that of Lamb v. Connor,
[3] Respondent thus being a proper party plaintiff, it is immaterial whether or not the trial court was justified in finding that he was an independent contractor, since even if the finding had been otherwise a different conclusion would not have necessarily followed. (Trout v. Ogilvie,
[4] As to the second point urged by appellant, namely, the lack of evidence to support the finding that it had agreed to pay plaintiff for the advertising published, we think it is without merit. Appellant and a Miss Thomas, who was admittedly merely a dummy for one Hicks, had entered into a contract whereby appellant agreed to furnish all materials for the construction of houses on eight lots to be secured by Thomas (Hicks) from the Mercantile Investment Company. Hicks was to act "in the capacity of general manager, superintendent and designer," appellant was "to pay for all labor, advertising and other expenses connected therewith," and on the sale of the lots and houses the net receipts were to be divided between the contracting parties. *536 The advertisements in question were of the houses built pursuant to this contract. They were ordered from respondent by Hicks, at whose direction respondent charged them to appellant. Before the advertisements were published in the "Times" appellant, according to his testimony, submitted the copy to Mr. Mox, president of appellant corporation, and to Mr. Johnson, its secretary, and Mr. Mox said that he would pay for the advertisements and did, in fact, pay $486.80 on the bill. Respondent's stepson, a Mr. Shelton, at respondent's request, called Mox, Incorporated, on the telephone to verify the authority of Hicks to order the advertisements and charge them to appellant, and was told that "it was O.K. to run them." Hicks himself testified that he "took up the matter of inserting these advertisements in the Los Angeles Times with . . . Mox, Incorporated. Mox agreed to let me go ahead," and said he would pay for the advertising. While appellant's witnesses disputed some of this testimony, it was for the trial judge to determine the facts and we are satisfied that his findings are amply supported.
[5] Appellant's claim that the allowance of interest on the amount found due was erroneous is untenable. The action was not for recovery of an uncertain or unliquidated amount, but was based upon an express agreement, and the court below found in accordance with this theory. Interest was properly allowed. (Civ. Code, sec.
The judgment is affirmed.
Works, P.J., and Thompson (Ira F.), J., concurred. *537