O'Daniel v. Streeby

• Decision Date: 17 January 1914
• Court: Washington Supreme Court
• Parties: O'DANIEL et ux. v. STREEBY et al.

137 P. 1025

77 Wash. 414

O'DANIEL et ux. v. STREEBY et al.

Supreme Court of Washington

January 17, 1914

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Edward H. O'Daniel and wife against W. M. Streeby and others. Judgment for plaintiffs, and defendant Streeby appeals. Affirmed.

Scott &amp Campbell, of Spokane, for appellant.

G. G Ripley, of Spokane, for respondents.

ELLIS J.

This is an action for damages because of an alleged misrepresentation made by an agent on a sale of real estate. The court, in substance, found that the defendant Streeby was the owner of the real estate in question on September 1, 1910; that the defendant Tipton, as agent for Streeby, and for a commission negotiated a sale of the premises in question to the plaintiffs, who purchased the premises, paid the purchase price, and received a deed thereof from the defendant Streeby; that Tipton, during the negotiations by which the sale was accomplished, represented to the plaintiffs that the following articles, namely, a meat market refrigerator, shelving in a storeroom, kitchen sink, storm sash, seven screen doors, warehouse, pieces of 2X6 scantling in attic, lumber from tent in rear of barn, and sundry other boards, all of which were then on the premises, belonged to and were a permanent part of the realty; that these representations were false, in that these articles were placed on the premises by one Floan (a tenant) who, by agreement with Streeby, owned them and had the right to remove them, and, subsequent to the conveyance, did remove them; that these articles were of a reasonable value of $504; that these representations were a material inducement to the plaintiffs in making the purchase; and that the plaintiffs had no knowledge or notice of their falsity till long afterwards. We have examined the evidence, which is conflicting, with much care; but its discussion in detail would merely lengthen this opinion to no useful purpose. We are convinced that, by a clear preponderance, it supports the court's findings. Tipton's agency to find a purchaser and negotiate a sale of the real estate was clearly established, and it was also established by the evidence, and in fact conceded in argument, that the warehouse, refrigerator, and shelves were the chief things in issue, and were of such character and were so attached to the realty as to be a part of it, but for the agreement with the tenant that he might remove them. It is conceded that the other articles were of little value. Upon these findings and suitable conclusions of law, the court entered judgment for the plaintiffs and against the defendants for $504, with legal interest from September 1, 1910, and for costs. At appropriate times the defendants moved for a nonsuit and for a new trial. Both of these motions were overruled. The defendant Streeby appeals.

The appellant presents his several assignments of error under two heads, contending: (1) That the authority of the agent was limited to the mere finding of a purchaser, and that he could not bind the principal by his representations; (2) that, conceding a general authority to make the representations claimed, they were not such that respondents had the right to rely upon them.

1. The appellant claims that his agent, Tipton, had no authority to make any representations concerning what was appurtenant to and passed with the realty, which would bind the appellant as principal. It is, of course, a general rule that third parties dealing with an agent cannot rely upon the agent's assumption of authority, but must, at their own risk, ascertain both the fact of agency and the extent of the agent's authority. The burden is upon them to show that the acts of the agent were within the scope of his authority. But it is also a general rule that, when the fact of agency is once established, the principal is bound by the acts of his agent within the apparent scope of his actual authority, or that authority which the principal knowingly permits the agent to assume. 1 Am. & Eng. Encyc. of Law (2d Ed.) p. 989. What comes within the apparent scope of an agent's authority, whether the agency be general or special, is determined by what is usual or necessary to the performance of the principal power; that is, what is necessary to effect the purpose of the agency. Such necessary powers are prima facie incident to every authority. 'The principle is elementary and uniform that a power given an agent in a transaction carries with it the authority to do whatever is usual and necessary to carry into effect the principal power. And this applies as well to special as general agents, unless the manner of doing the particular act is prescribed by the power.' 1 Am. & Eng. Encyc. of Law (2d Ed.) pp. 997 and 998; Driver v. Galland, 59 Wash. 201, 109 P. 593.

It would seem to follow as a corollary that, where the acts done come within the apparent scope of the authority so defined, it is incumbent upon the principal seeking to avoid liability for such acts to show not only that the authority to do the acts was not expressly given to the agent, but that the authority was expressly withheld and that the person dealing with the agent had knowledge of that fact.

The application of these general principles to the facts before us makes it plain that the agent had authority to represent what was appurtenant to the realty, so as to bind the appellant. It was clearly established that the agent was authorized to conduct the negotiations for the sale, merely submitting the terms of the sale to the principal for approval. The appellant himself so testified. He admitted that he never, at any time during the negotiations, communicated with the respondents or their agents. Such an authority clearly empowered the agent to point out and exhibit to the purchaser the property to be sold. That was a necessary part of the most preliminary negotiation. There could hardly be a beginning of negotiations without an indication to intending purchasers of the subject-matter of negotiation. If therefore the fixtures pointed out and exhibited by the agent as part of the realty were of such a nature and so attached that, in the absence of an agreement with the tenant to the contrary, they would have constituted a part of the realty, then, as between the principal and purchaser, the principal was bound by his agent's representations. There was no pretense on the appellant's part that he ever actually informed the agent that these articles were not his own. He does not claim to have limited the agent's authority by any express instructions in that particular. The representations were made by the agent in the line of his employment. They were within the apparent scope of the agent's aughority even as admitted. 'We judge from the remarks interjected by the court during the trial that it entertained the view that the owner of the land was not responsible to the purchaser for the fraudulent representation of its selling...