Clemann v. Bandimere, 16922

• Decision Date: 06 July 1953
• Docket Number: No. 16922,16922
• Citation: 128 Colo. 24,259 P.2d 614
• Parties: CLEMANN et al. v. BANDIMERE et al.
• Court: Colorado Supreme Court

Page 614

259 P.2d 614

128 Colo. 24

CLEMANN et al. v. BANDIMERE et al.

No. 16922.

Supreme Court of Colorado, en Banc.

July 6, 1953.

Philip A. Rouse, Denver, for plaintiffs in error.

Frank A. Bruno and Westel B. Wallace, Denver, for defendants in error.

STONE, Chief Justice.

Plaintiffs in error, doing business as Midwest Trades School, herein referred to as the school, were defendants below, and defendants in error, doing business as Bandimere Auto Parts and Supply Company, referred to as the parts company, were plaintiffs. The school engaged in the training of automotive mechanics and, in connection with its program, invited the public to bring automobiles to the school for repair without expense except for the purchase of needed parts, the work being done by student mechanics. The car owner signed written agreement to leave the car and to pay for all parts necessary to put the car in first class condition. During the latter part of the period here involved, such agreement provided that the owner would pay for all parts before the car was delivered to him.

By some arrangement not in writing, plaintiff parts company, during a period of seven months, from May 1, 1949 to December 1, 1949, furnished parts for use in the repair of cars by the school as well as socalled consumable supplies which were not to be paid for by the car owners but by the school. Such consumable supplies were billed to the school and paid for monthly.

During the seven months' period, the parts to be charged to car owners averaged around $5,000 per month. As each car was received for repair, list of needed parts therefor was made out and sent to the parts company, which delivered them to the school, together with an invoice thereof. Due to the age and variety of cars, it was difficult to obtain the right parts and frequently necessary to return parts received and obtain others in their stead, which often resulted in confusion as to the correct charges.

The school had an office where parts were received from the parts company and distributed for car repair and where the owners came after the repairs were completed for checking up and payment. It appears that the school usually had an employe there who would check with the invoice the parts used or returned and take payment and release the car, and that plaintiff parts company also usually had a partner or an employe there to receive the money. There was substantial testimony that sometimes payment was made direct to the plaintiffs or their employes, and that in other cases plaintiffs made credit arrangement direct with the owners. Differences arose concerning the correct ordering and furnishing of parts with the result that the parties terminated their relationship. Thereafter the school sent many owners to the parts company for payment of their bills and they in that way collected more than $2,000. On December 20, 1949, apparently without ever rendering a statement or making a demand on defendants, plaintiffs brought suit against the school both for the balance admittedly due for consumable supplies, the amount of which defendants tendered into court, and for balance claimed to be due for car parts used on cars repaired for outside owners. In the complaint plaintiffs alleged debt by defendants for goods sold and delivered to them. Defendants answered by general denial except as to the consumable supplies, and alleged that the other parts were sold by plaintiffs to persons other than defendants. Trial was to a jury. After conclusion of the evidence, the court made findings as follows:

'The Court: Gentlemen, I can find no disputed facts in this evidence. In fact, I find that there is no dispute in the evidence. It would be difficult to conceive of a case in which there is more agreement among the parties as to what actually happened.

'Stripped of all of the mechanics involved, it is easy to see that all parties agree that the plaintiff was to furnish parts, that the automobile school was the conduit through which the parts would flow, and was responsible for the collection and remittance back to the plaintiffs. Therefore the only dispute is as to the legal effect of such an arrangement.

'I find that such an arrangement creates an agency in which the automobile school was to act as agent for Bandimere in deliverying and installing the parts and in collecting the money. The automobile company has...