261 P. 737 | Cal. Ct. App. | 1927
Action to foreclose a mechanic's lien. Plaintiff, the lien claimant, alleged that it had furnished to defendant as owner, at his special instance and request, certain labor and materials in the improvement and repair of an apartment house known as the "Inverness Apartments," at No. 1405 Van Ness Avenue, San Francisco, and alleged further that the defendant had agreed to pay a stipulated sum for such improvements. By his answer defendant admitted ownership of the premises, but denied that he had ordered any repairs to be done or that he had agreed to pay for the same. As a separate defense he alleged that at all the times referred to in plaintiff's complaint the premises known as the "Inverness Apartments" were in the exclusive possession of one Fred. W. Hollman, Inc., a corporation, and Thomas J. Pearce, as lessees, under a written lease from him as owner and lessor, and that any work done by plaintiff and any materials furnished were rendered and furnished without his knowledge. It appeared in evidence at the trial that the labor and materials for which suit was brought were rendered and furnished by plaintiff in the *574
repair of a boiler, a part of the heating system of the building. Some years prior to this repair defendant had leased the apartment house for a term of years, some ten of which were yet to run at the time in question, to one Thomas J. Pearce and to F.W. Hollman, Inc. This lease was in writing and it specifically provided that the lessees should keep the house in good repair at their own expense, without any charge to the owner. At the time of the making of the lease the house was in good condition, as was the boiler. Just prior to the repairs in question a night-man employed by the tenants had permitted the water to run out of the boiler, with the result that two sections, front and rear, had burned out. The injury to the boiler occurred at night and because of the cold weather immediate repair was necessary. Pearce procured the necessary parts from a wholesaler, the Stulsaft Company, and a representative of that company telephoned from the Inverness Apartments to Mr. Wood, president of plaintiff company, requesting that the repairs be made. Mr. Wood proceeded to the premises and conferred with Mr. Pearce, one of the lessees, with reference to the work. He made inquiry concerning the ownership of the building and asked Pearce what authority he had to order the work done. He informed Pearce that it was an expensive job and that it would cost approximately three hundred dollars. He was told by Pearce to go ahead with the work and not to worry about the charge. The work was performed and plaintiff rendered its bill to "Mr. Pearce, Manager Inverness Apartments." No bill was ever rendered to Mr. Blalack, the owner, defendant herein, nor did defendant ever know or hear of the repairs being made, until some three weeks thereafter, at which time Pearce informed him that he could not pay the monthly rent on account of the expense of the repairs. No claim was made at the trial that defendant ever directly ordered the work to be performed, nor was there any competent proof of the existence of an agency, but, on the contrary, the evidence shows that none ever did exist. It was proved that defendant had paid a repair bill to the sidewalk elevator amounting to the sum of twenty dollars some two years prior to the work in question. It was also shown that defendant had paid for electrical improvements in the apartment house which were in their nature permanent and which he had especially contracted *575
with the tenants to do. Aside from this evidence, which does not show an ostensible agency, there is no evidence in the record upon which an agency by estoppel could arise, and, indeed, if we understand the position of respondent no such claim is made, his contention being that the findings show that plaintiff furnished the labor at the special instance and request of Pearce, who at the time was acting as the agent of defendant under his authority. But these findings are not supported by the evidence. For the purpose of proving that an actual agency did in fact exist, plaintiff offered and there was received in evidence, over the objection of defendant, testimony to show that Pearce had told Wood that he was the agent of defendant and to go on and do the work and there would be no question about the pay. This evidence was improperly admitted. [1] The declarations of one claiming to be an agent, not made under oath or in the presence of the principal, and not communicated to, or acquiesced in by him, are inadmissible to prove the fact of agency. [2] One who deals with another, upon his mere statement that he is the agent of a third person, takes upon himself the risk of being able to show that such agency exists. If, instead of satisfying himself by independent investigation, he accepts such statement and is deceived, he is the victim of his own credulity (Pease v.Fink,
For the reason given the judgment is reversed.
Knight, J., and Cashin, J., concurred. *577
