Caughren v. Kahan

• Decision Date: 22 July 1915
• Docket Number: 12295.
• Citation: 150 P. 445,86 Wash. 356
• Court: Washington Supreme Court
• Parties: CAUGHREN et al. v. KAHAN et al.

150 P. 445

86 Wash. 356

CAUGHREN et al. v. KAHAN et al.

No. 12295.

Supreme Court of Washington

July 22, 1915

Department 1. Appeal from Superior Court, Spokane County; Joseph Sessions, Judge.

Replevin by J. A. Caughren and Martin Woldson, partners as Caughren &amp Woldson, against B. Kahan and E. Falk, partners as Kahan &amp Falk Company. From a judgment for defendants, plaintiffs appeal. Affirmed.

Voorhees & Canfield, of Spokane, for appellants.

Zent Powell & Redfield, of Spokane, for respondents.

HOLCOMB J.

In an action of replevin brought by appellants against the respondents, tried before a jury, the jury returned a verdict for the respondents and found the value of the property to be $900. From a judgment entered thereon, this appeal is taken.

The property in controversy was a quantity of iron rails and scrap iron which had been theretofore used in the business of appellants. Appellants are a firm of railroad contractors having an office in Spokane, Wash. Mr. Caughren, one of the members of the firm, resides at Sauk Center, Minn. Woldson, the other member, resides in Spokane, and is in general charge of the business of the firm. They have a warehouse and yards at Hillyard, in which they store such tools, rails, and appliances owned by them for use in their business of railroad construction as are not in actual use. One Dreifus was a dealer in secondhand machinery and hardware in Spokane. For about four years prior to March, 1913, one Rich had been employed by appellants as a bookkeeper in their office in Spokane. In March, 1913, Rich attempted to sell to Dreifus a quantity of secondhand railroad iron. Dreifus was to pay $800 for the iron, and resold it to Kahan & Falk Company, defendants, for $900. The authority of Rich, apparent or real, to make this sale, was the principal issue at the trial.

Appellants insist that Dreifus' dealings were not with them, but were with Rich individually, and not as agent. It was well established at the trial, and indeed there was no contention by Dreifus but that the property belonged to Caughren & Woldson; and, unless the evidence is conclusive that neither real nor apparent authority has been conferred upon Rich as agent, or that the transaction was collusive between him and Dreifus, as principal, and not as agent for appellants, the sale was not fraudulent and would pass the title to Dreifus and thence to respondents. It is conceded, of course, that the respondents obtained no better title than their vendor Dreifus had. The appellants contend that because of certain writings made at the time of the transaction, viz., two checks made in favor of Rich individually by Dreifus and one receipt to Dreifus signed by Rich individually, it is shown conclusively that Dreifus was dealing at the time with Rich individually and relying on Rich as his vendor; that, if he had dealt with Caughren & Woldson, he would have named them as payee in the checks, and he would likewise have taken their receipt for the purchase price instead of taking the receipt of Rich. It must be remembered that these writings were not such writings as are required by any statute, and are not conclusive evidence of the transaction or of the nature of the transaction. Under the testimony introduced by respondents, it appears that, for about four years prior to March, 1913, Rich had been employed by appellants as their bookkeeper in their office at Spokane. About three years prior to March, 1913, Rich had undertaken to sell to Dreifus certain scrap iron, amounting in all to about 25 tons, for $75. Rich then went with Dreifus to appellants' yards at Hillyard and directed the watchman, who was a brother of Martin Woldson, to deliver this scrap iron to Dreifus, which was done. Dreifus was engaged from that time for three weeks in hauling away from appellants' yards this scrap iron. Dreifus paid Rich the cash for this purchase. About a year after that transaction Rich undertook to sell certain car wheels, which had become useless for construction purposes, and directed the same watchman to deliver these car wheels to Dreifus at Hillyard. This was done, and the car wheels were loaded on a car at the yards and were shipped out by Dreifus. The agreed price between Rich and Dreifus was paid to Rich in cash. It appears also that, some three or four months previous to March, 1913, Dreifus went to the office of appellants and for the first time, as he testified, saw and talked to Mr. Woldson. Woldson then asked Dreifus what his business was. Dreifus replied that he wanted to duy some 40-pound rails. Woldson replied: 'I am busy; talk to Mr. Rich.' Dreifus did talk to Rich about it, but no sale was made at that time. This is the only conversation which, according to Dreifus' testimony, he ever had with Mr. Woldson. This conversation is denied by Mr. Woldson, but as appellants concede, under the intendment which follows the verdict of the jury, the facts are to be taken as above recited. Early in March, 1913, Rich called on Dreifus at his place of business and talked with him about selling certain steel rails at Hillyard. They went together to Hillyard and looked at the rails. An agreement was reached between them by which Dreifus was to purchase 900 serviceable rails for $800, and in addition thereto was to receive a number of bent rails, which were to be paid for by him at $4 per ton. Rich then directed the watchman at appellants' yards to load out 900 steel rails, but told the watchman that the rails were for the use of Caughren & Woldson at Trinidad, a point in central Washington, where they were doing railroad construction. Rich employed one Hawkes to load these rails on cars, and they were loaded on two flat cars at appellants' storage yards at Hillyard. They were billed out at Hillyard by the Great Northern Railway Company in the name of Caughren & Woldson, per Rich, as railroad contractors, denominating the shipment as contractors' supplies. They were billed to Caughren & Woldson at Spokane, and upon arrival at Spokane the freight was paid by Rich. Four hundred dollars of the purchase price was paid to Rich by Dreifus on March 18th, and a check for $400 given him, which was postdated March 24th. Dreifus had resold the goods to respondents for $900, receiving $800 of said sum. The goods were delivered to and unloaded at respondents' warehouse in Spokane on March 25th. On about March 25th Rich disappeared.

The appellant assign, among other errors, the following, which may be considered together: (1) That the court erred in refusing appellants' request for a peremptory instruction to the jury to find a verdict in favor of plaintiffs; and (2) that the court erred in denying the motion of appellants for a judgment non obstante veredicto.

If there was any fact or inference upon which the jury would be justified in finding a verdict in favor of respondents and against appellants, neither the appellants' motion for a peremptory instruction to find in their favor nor their motion after the verdict for a judgment non obstante veredicto could be granted. As to the last motion, it has been repeatedly held by this court that it invokes no element of discretion. It invokes a purely judicial function of the trial court and of this court on review. It can only be granted when the court can say, as a matter of law, that there is neither evidence, nor reasonable inference from evidence, sufficient to sustain the verdict. Brown v. Walla Walla, 76 Wash. 670, 136 P. 1166; Forsyth v. Dow, 81 Wash. 137, 142 P. 490.

There is no implication to be derived from the evidence, as shown by the record in this case, that Dreifus believed, or had any reason to believe, that, in regard to the transaction in controversy, he was dealing with Rich, as principal. The only question of fact to be determined under the evidence was whether or not Rich, as agent, had actual or apparent and implied authority to sell the goods to Dreifus. The fact of Rich's authority to sell his principal's goods was one not necessary to be determined by direct evidence, but might be inferred from certain other facts, as for instance, the previous course of dealing between him and third persons. Appellants erroneously suppose that, because Dreifus testified that his dealings were with Rich, that he bought from Rich, that he paid Rich, and that he took a receipt from Rich, he was expressly dealing with Rich as principal. We do not so understand. The evidence...