Burns v. Bradford-Kennedy Lumber Co.

• Decision Date: 20 December 1910
• Citation: 112 P. 359,61 Wash. 276
• Parties: BURNS v. BRADFORD-KENNEDY LUMBER CO.
• Court: Washington Supreme Court

112 P. 359

61 Wash. 276

BURNS v. BRADFORD-KENNEDY LUMBER CO.

Supreme Court of Washington

December 20, 1910

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by H. J. Burns against the Bradford-Kennedy Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Poindexter & Moore and Richard G. Hutchinson, for appellant.

Barker & Barker and C. C. Upton, for respondent.

DUNBAR J.

The respondent is a resident of the city of Spokane, in the business of manufacturing blowpipes and attachments for sawmills in Spokane. The Dehlbom Lumber Company, at the time of the transaction out of which this suit grows, was engaged in the manufacture of lumber products in the state of Idaho. The appellant is a Nebraska corporation having an office in the city of Spokane, engaged in buying and selling lumber, and one George P. Newmeyer was its agent. Newmeyer, according to his statement, went to respondent's factory and gave him the measurements for a blowpipe system to be installed in the Dehlbom mill, which it is conceded was of doubtful financial standing. According to the respondent's statement, Newmeyer met respondent in the city of Spokane and told him that he thought he would have a job for him. About a week later he went to respondent's place of business, and gave him the measurements for a blowpipe system to be installed in the Dehlbom mill. Respondent told Newmeyer that the Dehlbom company did not have good financial standing, and Newmeyer without being requested by respondent, said: 'Well, you send the statement on to them, and we will pay the bill.' Newmeyer denies that he ever told respondent that appellant would ever pay the bill for the blowpipe system. The system was manufactured and installed in the lumber company's mill. The appellant refusing to pay for the same, this action was brought, and in answer to the complaint the appellant denied that it had ordered the said system, or had agreed to pay for the same. The case was tried to the court without a jury, and judgment was rendered against the appellant in the sum of $348.64, with costs. From that judgment this appeal is taken.

There is no controversy over the value of the goods furnished. The findings of fact were made by the lower court, all of which were excepted to by the appellant, the main and material one being that on or about August 21, 1909, defendant, through its agent, George P. Newmeyer, ordered of plaintiff a certain blowpipe system, to be shipped and installed in a certain sawmill at Copeland, Idaho, operated by the Dehlbom Lumber Company. Two questions are presented by the appeal in this case: (1) Was the promise of Newmeyer, if he did in fact promise, an original promise and valid and binding though oral, or was it a promise to answer for the debt of a third person, which, to be valid would have to be in writing? and (2) was the purchase of machinery within either the actual or apparent scope of Newmeyer's authority as agent of appellant?

We think there is no question but that the second query must be answered in the affirmative. As to the first, our Code provides (section 5289, Rem. & Bal. Code) that 'every special promise to answer for the debt, default or misdoings of another person' shall be void unless it is in writing. It is the contention of the appellant that the circumstances of this case bring it within the prohibition of the statute and many cases are cited to sustain the general doctrine that where one agrees to pay for goods that are furnished to another, or where one says to the merchant, 'Let Mr. Blank have what goods he wants and I will pay for them, or I will see that they are paid for,' such promise falls within the statute. But all of these cases where the contract on the part of the avowing party embraces the expression 'we will see that the account is paid,' or words to that effect, are easily distinguishable from the case at bar. In those cases the contract is generally made by one party, and the other party vouches for the payment of the bill. But in this case, if the testimony of the plaintiff is true--and we have no reason to think that the court erred in finding in effect that it was--there was but one party who dealt with the plaintiff in this transaction, viz.,...