Bruce v. Smith

• Decision Date: 24 January 1970
• Docket Number: No. 45514,45514
• Citation: 204 Kan. 473,464 P.2d 224
• Parties: Herbert D. BRUCE and Carol Bruce, his wife, Appellees, v. E. C. SMITH, d/b/a A & A Duraclean Service, Appellant. Duraclean Company, a corporation, and Isaac Magdaleno, Defendants.
• Court: Kansas Supreme Court

Page 224

464 P.2d 224

204 Kan. 473

Herbert D. BRUCE and Carol Bruce, his wife, Appellees, v. E. C. SMITH, d/b/a A & A Duraclean Service, Appellant Duraclean Company, a corporation, and Isaac Magdaleno, Defendants.

No. 45514.

Supreme Court of Kansas.

Jan. 24, 1970.

Syllabus by the Court

1. In the absence of special findings, a judgment entered in a case tried to the court implies a general finding in favor of the litigant for whom judgment is entered, including all material facts necessary to support the same, and where there is evidence to support the judgment it will not be disturbed on appellate review.

2. An agent purporting to act on his own account, but who in fact contracts on behalf of an undisclosed principal, becomes a party to the contract and is personally liable thereon.

3. An agent has a duty to disclose both the fact of his agency and the identity of his principal if he is to avoid personal liability on a contract made on behalf of his principal, for the party with whom the agent deals is not required to discover or make inquiry as to such facts.

4. One who holds himself out to be the owner of property may subsequently be estopped to deny his ownership thereof.

5. Silence, itself, may give rise to an estoppel where, under attendant circumstances, a person is under a duty to speak or to make disclosure.

6. The record is examined in an action to recover damages occasioned to furniture through a cleaning process, and for reasons appearing in the opinion it is held the court did not err in entering judgment in favor of the plaintiffs.

Cliff W. Ratner, Wichita, argued the cause, and Payne H. Ratner, Louise Mattox, Payne H. Ratner, Jr., R. R. Barnes, Edmond L. Kinch, and Patrick L. Dougherty, Wichita, with him on brief, for appellant.

Elliott Fry, Wichita, argued the cause, and Henry E. Martz, Clyde Wendelken, and William A. Bonwell, Jr., Wichita, with him on brief, for appellees.

FONTRON, Justice.

The plaintiffs Herbert D. Bruce and Carol Bruce, his wife, bring this action to recover damages to a couch which was entrusted to A & A Duraclean Service to be cleaned. The action was tried to the court which rendered judgment against the defendants E. C. Smith and Isaac Magdaleno. The defendant Smith, alone, has appealed.

Basically it is Mr. Smith's contention, as it has been throughout the entire proceedings, that A & A Duraclean Service was owned and operated by Mr. Magdaleno when the couch was cleaned; that he, Smith, then had no connection whatever with the business; and that he is not personally liable for any damage occasioned to the sofa. In support of this argument Mr. Smith points to a stipulation filed of record that on June 15, 1965, Smith sold A & A Duraclean Service to Isaac Magdaleno. The execution of this stipulation, however, does not control the disposition of this lawsuit. Accordingly, we must take a look at the plaintiffs' evidence.

Sometime in July, 1965, Mr. and Mrs. Bruce decided to have a couch and other furniture cleaned and stored pending a change of residence. The couch was upholstered in a Gref material, or fabric, which Mrs. Bruce knew had to be cleaned with a solvent base solution.

After calling several cleaning establishments Mrs. Bruce, on July 16, 1965, called A & A Duraclean Service. The woman who answered the telephone told Mrs. Bruce that Mr. Smith, whom she identified as owner and manager of the business, could answer her questions. A man was then called to the phone who identified himself as Mr. Smith. In the ensuing conversation Mr. Smith satisfied Mrs. Bruce that he was familiar with Gref fabric and with the cleaning process required to clean it properly.

Relying on Smith's statements, Mrs. Bruce called him a few days later and arranged to have the couch picked up, and on July 26 Mr. Magdaleno and a Mr. Colbert, a shop employee, came and got the sofa. It was returned to the Bruce home on September 2 in a damaged condition, the color in one cushion and both arm boots having bled and faded.

The next morning Mrs. Bruce called A & A Duraclean Service twice and asked for Mr. Smith but was advised that Smith was not there. That same afternoon Mr. Colbert delivered a rug to the Bruce home and for the first time Mrs. Bruce was told that Magdaleno was running A & A Duraclean Service. A day or so later, Mrs. Bruce called Mr. Magdaleno who said he would ask Mr. Smith to look at the furniture, and on September 10, Smith went to the Bruce home and suggested the damaged items be sent to National Duraclean Service in Illinois. This suggestion was followed but the damage was never remedied, the sofa being returned to the Bruces without any change in its condition.

The trial court did not make findings of fact or conclusions of law in entering judgment against the defendants Smith and Magdaleno. Accordingly, the plaintiffs maintain that the general finding, which is implicit in the judgment, determines in their favor every material controverted issue of fact, and plaintiffs proceed to invoke the ancient and venerable rule that where there is any evidence to support a general finding, the judgment based thereon will not be disturbed on appellate review.

Appellants correctly cite the law in this regard. In Wycoff v. Board of County Commissioners, 191 Kan. 658, 383 P.2d 520, this court has said:

'* * * It is well settled that where a...