89 P. 148 | Or. | 1907
Opinion by
The instrument upon which this action is brought, strictly speaking, is what is termed an “undertaking.” It is a simplified bond without a seal: 29 Am. & Eng. Enc. Law (2 ed.), 98; Scherer v. Hopkins, 42 N. Y. St. Rep. 189 (16 N. Y. Supp. 863). The question as to the effect of it being an unsealed instrument is not urged here, and, under the issues involved, is not material, except in so far as it majr explain the effect of certain testimony given at the trial. The jury found from the evidence, under the law as given them by the court, that Gingrich was plaintiff’s agent, and that, as the terms of such agency empowered him to prepare plans and specifications for the building, including the supervision of its construction, it was within the scope of his authority to look after the preparation of the undertaking and approve the same when signed by the principal and surety. The only point necessary for consideration is as to whether the question of the extent of Gingrich’s authority, under the evidence,
On this point, it is urged by defendant’s counsel that the showing made at the trial, to the effect that Gingrich was plaintiff’s architect, drew the plans for the building, supervised its construction, furnished his attorney with data for the preparation of the papers, and witnessed the instrument, together with plain
“Q. Mr. Wollenberg, who represented you in drawing up these plans and contract?
A. Mr. Gingrich.
Q. He was your architect and agent in this matter?
A. Yes, sir.
Q. He superintended the entire construction of the building?
A. Yes, sir.
Q. These several men that you testified as having been paid after Mr. Knapp left his contract, did Mr. Gingrich oversee all these ?
A. Yes, sir; he gave orders for the payment.”
Mr. Benson, plaintiffs attorney, testified to the effect that he drew the bond and contract at the suggestion, principally, of Gingrich and Knapp, and that Wollenberg was there a part of the time; that Gingrich suggested some of the terms, but the amount of the bond Avas determined by Wollenberg and fixed at $1,500. No other testimony was given on these points, and it further appears, without contradiction, that all the information furnished by Gingrich for the formulation of the contract and of the undertaking was submitted, and that the papers were prepared and approved by Wollenberg, before either instrument was signed, which was not done in his presence. In explanation of his response to the question asked him on cross-examination, when the words “architect and agent” were used, plaintiff stated, on redirect examination:
“I did not understand the question right. I did not hear the word agent. I only admit he was my architect.”
He further stated Gingrich was not his agent for any other purpose. Taking his testimony as a whole, with the language used in the questions asked, it cannot be inferred that plaintiff intended to be understood as saying Gingrich had any other authority than that of an architect. The question relied upon
The instructions requested, to the effect that plaintiff was not bound by anything claimed to have been said by defendant to