254 P. 618 | Cal. Ct. App. | 1927
Plaintiff had judgment against the defendant Lea Bleakmore, and the defendant Helen Bleakmore had judgment against the plaintiff. Plaintiff thereupon moved the trial court to vacate the judgment in favor of the defendant Helen Bleakmore, and to enter judgment against said defendant in favor of the plaintiff. This motion was denied. From this order and from the judgment in favor of the defendant Helen Bleakmore the plaintiff appeals.
Lea Bleakmore and Helen Bleakmore are husband and wife, residing in Lake County. Helen Bleakmore owns a pear orchard situate in the county of Lake. Her husband, Lea Bleakmore, owns no interest in said orchard. During the times mentioned in these proceedings the orchard was in charge of one Ed Stewart, as foreman, employed and paid by the defendant Helen Bleakmore. Ed Stewart had full charge of the pear orchard in question.
On or about the fourteenth day of March, 1923, the defendant Lea Bleakmore went to Los Angeles and while there purchased from the plaintiff fifteen tons of Lupine No. 1 fertilizer, at the agreed price of $42.50 per ton, and requested that the fertilizer be shipped to Ed Stewart by way of Hopland. At the time of the purchase, the defendant Helen Bleakmore was not present. Lea Bleakmore stated to the plaintiff that the fertilizing material was for his pear orchard. The fertilizer was shipped to Hopland at the request of Lea Bleakmore, and a teamster hired by the said Ed Stewart hauled the fertilizer from Hopland to the pear orchard belonging to Helen Bleakmore. The fertilizer was first dumped in a barn situated on the pear orchard premises, after which fourteen tons of the fertilizer were by the said Ed Stewart, and a workman employed by *661 him, hauled out and distributed so as to place a portion thereof around each pear tree of the orchard belonging to the defendant Helen Bleakmore. One ton of the fertilizer was left in the barn for over a year and then subsequently used. The expense of hauling and distributing the fertilizer was paid by the defendant Helen Bleakmore in connection with other ranch work performed by the said Ed Stewart and the person employed by him. Whether there was any segregation or specification of the particular time spent in hauling and distributing the fertilizer, or wages charged and paid for such services, does not appear in the transcript. There is nothing in the transcript to show that Helen Bleakmore knew anything about the purchase of the fertilizer in question, nor is there anything in the transcript showing that Lea Bleakmore ever conveyed any information concerning his purchase of the fertilizer or of the manner in which it was purchased to Ed Stewart, the foreman of the defendant Helen Bleakmore. No demand was ever made by the plaintiff upon the defendant Helen Bleakmore for payment until the beginning of this action, nor does the record disclose that Helen Bleakmore ever had any information from any source relative to the purchase and use of the fertilizer until she was joined as a defendant in this action to recover the purchase price thereof.
The record shows that Helen Bleakmore was a resident of the county of Lake, and while the appellant, in his brief, states that Helen Bleakmore resided upon the pear orchard in question, there is nothing in the record before this court upon which such a conclusion can be predicated. The cause is before us upon an appeal upon the judgment-roll, and there is nothing in the findings indicating where Helen Bleakmore resided other than that she was a resident of Lake County.
At the conclusion of the trial, the court made certain findings and it is now urged upon appeal that upon these findings judgment should be ordered against the defendant Helen Bleakmore. The findings referred to are as follows: "VI. That at the time of said purchase by said Lea Bleakmore of said fertilizer, the defendant Helen Bleakmore was not present and it was unknown to plaintiff at the time of sale that said fertilizer was purchased by Lea Bleakmore to be placed around the pear trees owned by defendant Helen *662
Bleakmore. That said Lea Bleakmore stated that he was purchasing the fertilizer for his pear orchard. That said Lea Bleakmore owned no pear orchard at that time nor since. That more than ninety (90) days have elapsed since the delivery of said fertilizer to Helen Bleakmore's pear ranch. VII. The court finds that Lea Bleakmore purchased fifteen (15) tons of Lupine No. 1 fertilizer at the price of six hundred thirty-seven and 50/100 ($637.50) dollars with instructions to ship said fertilizer to Ed Stewart, at Lakeport, via Hopland. That Ed Stewart was instructed by Lea Bleakmore to place said fertilizer around each pear tree. That said fifteen (15) tons of fertilizer were hauled from Hopland to Helen Bleakmore's barn and dumped in the barn by the teamster. That Ed Stewart, manager for Helen Bleakmore, and Robert Hudson, hired man, thereafter hauled fourteen (14) tons of said fertilizer from Helen Bleakmore's barn and placed it around each of her pear trees in her thirty-acre orchard. That Lea Bleakmore owned no pear orchard and no interest in Helen Bleakmore's orchard. That Helen Bleakmore was not present at the time Lea Bleakmore purchased said fertilizer and said Lea Bleakmore never disclosed to defendant Helen Bleakmore that the fertilizer was to be placed on Helen Bleakmore's pear orchard. That Ed Stewart, Helen Bleakmore's foreman, has full charge over her said pear orchard and defendant Helen Bleakmore gave no instructions in regard to her pear orchard. That defendant Helen Bleakmore paid Ed Stewart and Robert Hudson for the hauling of said fourteen tons of fertilizer from her barn and placing it around her pear trees in connection with other ranch work. That one ton of fertilizer was kept in defendant Helen Bleakmore's barn for one year and then placed around the pear trees in her orchard by her foreman, Ed Stewart, and she paid Ed Stewart for placing the one ton of fertilizer around her pear trees in connection with other ranch work. VII. The court finds that defendant Lea Bleakmore was not authorized at any time to purchase fertilizer from plaintiff for defendant Helen Bleakmore. That defendant Lea Bleakmore did not purchase said fertilizer as an agent for or on behalf of said defendant Helen Bleakmore. That defendant Helen Bleakmore did not purchase any fertilizer from plaintiff." [1] By finding No. 8, all inquiry as to whether *663
Lea Bleakmore was authorized at any time to purchase fertilizer for the use and benefit of the defendant Helen Bleakmore is foreclosed. The finding of the court is that he was not so authorized and the testimony not being brought up, the finding is conclusive upon this appeal. The finding is also to the effect that Helen Bleakmore did not purchase any fertilizer from the plaintiff. [2] The plaintiff, however, relies upon section
[4] As stated in 2 C.J., page 496, section 116: "There is no ratification if, at the time it becomes known that the agent exceeded his authority, the principal has put it beyond his power to return or restore the benefits received, or if without his fault conditions are such that he cannot be placed in statu quo or repudiate the entire transaction without loss, or if the continued enjoyment of the benefits by the principal is unavoidable." Again, as stated in said section, the rule of ratification by the acceptance of benefits implies the power of agents to accept or reject what has been received.
The finding by the court that the defendant Helen Bleakmore paid for the work of hauling and distributing the fertilizer in connection with other ranch work, if it be assumed therefrom that the defendant Helen Bleakmore then and at that time acquired information or knowledge of the purchase of the fertilizer, shows only the possibility of Helen Bleakmore having acquired such knowledge at a time when rejection of the transaction had become impossible, and, therefore, ratification could not be predicated upon any such assumed acquirement of knowledge. As stated inPuget Sound Lumber Co. v. Krug,
The authorities are likewise uniform that the mere fact of showing the relationship of husband and wife does not establish the relationship of principal and agent, even though it is also held that less evidence is required in such cases than is ordinarily required. (Rauer's Law Col. Co. v. Berthiaume,
Our attention is called to the case of Gay v.Virginia-Carolina Chemical Co.,
The judgment and order of the trial court are hereby affirmed.
Finch, P.J., and Hart, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 5, 1927.
Richards, J., Curtis, J., and Preston, J., dissented.