Bluefield Supply Co. v. Frankel's Appliances, Inc.

• Decision Date: 29 June 1965
• Docket Number: No. 12362,12362
• Citation: 149 W.Va. 622,142 S.E.2d 898
• Court: West Virginia Supreme Court
• Parties: BLUEFIELD SUPPLY COMPANY, v. FRANKEL'S APPLIANCES, INC.

Page 898

142 S.E.2d 898

149 W.Va. 622

BLUEFIELD SUPPLY COMPANY, v. FRANKEL'S APPLIANCES, INC.

No. 12362.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1965.

Decided June 29, 1965.

Syllabus by the Court

1. The defense of payment is an affirmative defense and the burden of proof to establish it rests upon the party who relies upon such defense.

2. The general rule is that the authority of an agent to perform the act in question must be proved.

3. The law indulges no presumption that an agency exists; on the contrary a person is legally presumed to be acting for himself and not as the agent of another person; and the burden of proving an agency rests upon him who alleges the existence of the agency.

4. A person who deals with an agent is bound at his own peril to know the authority of the agent.

5. As a general rule, when an agency relationship has been established the burden is upon the principal to prove that the agent was not acting within the scope of his authority when he committed the act as to which his authority is questioned.

6. When an agency is shown or admitted but the particular act is unusual and not necessarily incident to the purpose of the agency, the party with whom the agent deals has the burden of showing that the agent had authority from his principal to perform the act in question; but when an agency apparently covering the subject matter in question is established or admitted, the principal has the burden of proving any special limitations of authority and that the other party had notice or knowledge of such limitations.

7. The finding of a trial court upon the facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding.

8. When the finding of a trial court in a case tried by it in lieu of a jury is against the preponderance of the evidence, is not supported by the evidence, or is plainly wrong, such finding will be reversed and set aside by this Court upon appellate review.

9. When, upon the trial of a case, the evidence decidedly preponderates against the verdict of a jury or the finding of a trial court upon the evidence, this Court will, upon review, reverse the judgment; and, if the case was tried by the court in lieu of a jury, this Court will make such finding and render such judgment on the evidence as the trial court should have made and rendered.

Richardson & Hancock, Robert M. Richardson, Hudgins & Coulling, L. R. Coulling, Jr., Bluefield, for appellant.

Ducker & McCreight, H. L. Ducker, Paul W. McCreight, Huntington, for appellee.

HAYMOND, Judge:

This is a proceeding by notice of motion for judgment instituted in the Circuit Court of Cabell County in August 1959, in which the plaintiff, Bluefield Supply Company, a corporation, seeks a recovery from the defendant, Frankel's Appliance, Inc., a corporation, upon a stated account for 33 television sets, amounting to $5,054.01, with interest from August 1, 1959, which the plaintiff claims to be due and owing from the defendant as the purchase price of such sets. Attached to the notice was an affidavit in which were stated as items of the claim 33 individual television sets, at the unit price of $155.00, aggregating $5,115.00, and numerous other articles, all of which aggregate $6,220.65, less itemized credits for the items other than the television sets in the amount of $1,166.64, leaving an unpaid balance of the sum of $5,054.01 as the alleged amount of the claim.

On October 26, 1959, the defendant appeared and filed its counter affidavit, in which it denied that any sum was due from the defendant to the plaintiff upon the demand stated in the notice. The proceeding having been instituted before the effective date of the West Virginia Rules of Civil Procedure was in the main tried and determined under the procedure in effect before the adoption of those rules. A pretrial order was entered January 15, 1960, which limited the issues to the question whether the 33 television sets were sold to the defendant to be paid for by it or whether they were delivered to the defendant as an offset against credits claimed by it.

The regular judge of the circuit court deeming himself disqualified, the parties, by agreement, selected a local attorney as a special judge to try, hear and determine the case, and on February 19, 1960 the special judge was duly sworn and qualified and entered upon his duties as such special judge and trial of this proceeding was had before him in lieu of a jury on February 19 and 20 and March 5, 1960.

After considerable delay, of which the plaintiff here complains, the circuit court, the special judge sitting, entered an order on September 24, 1963, in which the circuit court found that the 33 television sets were transferred by the plaintiff to the defendant to offset credits, that in the existing circumstances the agent of the plaintiff had authority to make such transfer and the defendant was justified in entertaining that assumption, and that the plaintiff had failed to establish its claim by a preponderance of the evidence; and the circuit court rendered judgment in favor of the defendant.

By final order entered November 14, 1963, the circuit court overruled the motion of the plaintiff to set aside the findings and the judgment of the court and to award the plaintiff a new trial of the case. From that judgment this Court granted this appeal upon the application of the plaintiff.

The evidence, unduly voluminous in quantity, contains many unnecessary details and needless repetitions. In consequence it is difficult to set forth a narrative of the material facts by reciting the testimony of each witness. In that situation, instead of detailing the evidence of each of the four witnesses in behalf of the plaintiff who testified either in chief or in rebuttal and of the four witnesses in behalf of the defendant who testified either in chief or in surrebuttal, a summary of the material facts will suffice to indicate the questions presented for decision.

For several years before the occurrence of the transaction involved in this proceeding the parties had engaged in mutual dealings involving sale and purchase of various articles by each of them in an approximate amount of at least $100,000.00 annually and a practice had developed of periodically reconciling and resolving various credits which resulted from the great variety of transactions between the parties. Some of the credits mentioned in the testimony, which in most instances are of little or no importance with respect to the questions presented for decision, relating to the cost of advertising sundry articles sold by the plaintiff to the defendant and paid by it in substantial amounts, appear to have been settled and are not involved in this proceeding. Other credits relating to numerous air-conditioners and various small articles, also sold by the plaintiff to the defendant, are involved in this proceeding and as to them there is a conflict in the evidence.

The plaintiff's witnesses testified in effect that except a small balance of $275.00 or $300.00, all the disputed credits between the parties had been settled and resolved. On the contrary the testimony of witnesses for the defendant was that there was an unresolved credit in the amount of $3,300.00 or $3,500.00, to which the defendant was entitled, which resulted from the sale of certain air-conditioners by the plaintiff to the defendant before the transfer of the television sets and an additional number of credits for small articles aggregating $1,159.70. The total claimed credit, according to the testimony of the bookkeeper of the defendant appearing at one place in the record, amounted to $4,397.21. As previously indicated the amount of such credits is in dispute and the evidence as to them, though conflicting, is extremely vague and uncertain. In fact it is impossible to determine any exact or specific amount of the claimed credits which corresponds with the testimony of all the witnesses in behalf of the defendant, each of whom, in that respect, testified to a different amount. The bookkeeper of the defendant also testified that the claimed credits consisted of $3,300.00 with relation to certain air-conditioners and an additional number of credits for small articles aggregating $1,159.70, or a total claimed credit of $4,459.70, and he admitted that the credits so claimed were less than the purchase price of the television sets.

The evidence of the plaintiff consisting of the testimony of its treasurer was that after allowing the defendant credits in the sum of $167.42, the amount of the plaintiff's claim for which it demanded judgment was $4,886.59, with interest from August 1, 1959.

With respect to the item of the 33 television sets there is evidence that sometime in June 1958 an employee of the plaintiff, at its Huntington warehouse, received a written order from the defendant for the 33 television sets in question and at that time he talked by telephone to the general manager of the defendant and requested and received permission to sign the general manager's name to the order, which he did. The general manager of the defendant testified that he asked the employee of the plaintiff to transmit the customary bill of lading and sales slips to Irving Looney, sales promotion manager of the plaintiff, at its Bluefield office, who he said would handle the transaction and according to the testimony of the general manager of the defendant he gave those directions at the instance of Looney.

Pursuant to the written order, No. 4960, for the television sets, the employee delivered the sets to the proper representative of the defendant, a few sets at a time during a period of several days, the last delivery having been made on June 26, 1958, and at that time he prepared copies of the bill of lading and sales...