Gottlieb Bros., Inc. v. Culbertson's

• Decision Date: 16 May 1929
• Docket Number: 21739.
• Citation: 277 P. 447,152 Wash. 205
• Court: Washington Supreme Court
• Parties: GOTTLIEB BROS., Inc., v. CULBERTSON'S.

277 P. 447

152 Wash. 205

GOTTLIEB BROS., Inc., v. CULBERTSON'S.

No. 21739.

Supreme Court of Washington

May 16, 1929

Department 1.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Action by the Gottlieb Bros., Inc., against Culbertson's, a corporation. From the judgment, plaintiff appeals. Modified and remanded, with instructions.

Williams & Cornelius, of Spokane, for appellant.

Wakefield & Witherspoon, of Spokane (Harry T. Davenport, of Spokane, of counsel), for respondent.

HOLCOMB J.

Appellant sued to recover for two bills of goods, one sold in May 1927, amounting to $760, and the other in July, 1927 amounting to $1,042.50. There was no dispute as to the furnishing of the goods and the value. The controversy is over the question as to whether respondent became liable to payment for the goods.

At the times the goods were sold Culbertson's conducted a large department store in Spokane. One Filas operated a fur department in the store having a space of about 50 square feet upon the second floor of the department store building. There was nothing to indicate that it was not a part of the business of Culbertson's. The janitor, telephone, and cash-carrying service were all furnished by respondent. When goods were sold purchasers were given Culbertson's memoranda. If the sale was for cash, the money was turned into the accounting department of respondent; if on credit, it was entered on the books of respondent and respondent had charge of the collection. Respondent decided whether or not credit should be extended.

Filas had purchased from one Sloat, in 1924, the fur business being operated by him in respondent's store and continued the business under an agreement whereby Filas was to retain out of the sale price of all goods sold 15 per cent., but during a part of the summer of 1927, due to the fact that business had been dull, had retained only 7 1/2 per cent. of the gross sales.

The $760 sale in May was made to Filas, 'c/o Culbertson's.' The order for the $1,042.50 bill in July was by letter, at the top of which appeared the name of Culbertson's which was typewritten in large letters, and Filas testified that he caused the letter to be sent by the stenographer of respondent and told her to send it on Culbertson's stationery. The charge on the books of appellant for these goods was made to Culbertson's. They were sent by express to, and received by, Culbertson's when delivered. At the same time the goods were shipped, appellant wrote a letter addressed to Culbertson's at Spokane, acknowledging receipt of the order, advising that the goods had been shipped, and making some other statements regarding the increased price to be paid for some of the articles. There was nothing in this letter suggesting that the sale was made to Filas, or that credit was being extended to Filas, or to any other than Culbertson's. In due course Culbertson's received the letter and turned it over to Filas. When the goods were received, they were turned over to Filas. Appellant, upon receiving the second order, saw that the letter was signed by Filas, but understood from that fact and the further fact that the letter was on Culbertson's stationery that he was merely an employee, or officer, of Culbertson's.

The first order of May, 1927, was taken personally by one Brill, a salesman for S. Zivian, who was the western representative of appellant, located in San Francisco. It was dated May 31, 1927, stated that it was 'an order for goods sold to A. S. Filas (Culbertson's), Spokane, Washington.' Those goods were in the personal possession of Brill in Spokane and were delivered by Brill, in person, to Filas, and undoubtedly the credit was extended to Filas, the word 'Culbertson's' after the name of Filas being manifestly placed in the order for the purpose of identifying his location.

The second order stands upon a very different footing than the first, for the reason that it was sent by mail from Spokane on stationery ostensibly that of respondent, although signed by Filas, and the recipient of the order would be justified in assuming that it was an order from Culbertson's and that Filas was the responsible officer or employee of Culbertson's having the right to order such goods. At all events the shipment was made to Culbertson's, the goods were received by Culbertson's and, so far as appellant was concerned, it knew no one else in the transaction but Culbertson's.

It appears also that, after this last bill of goods had been ordered and received, Filas passed into bankruptcy, and appellant filed its claim in bankruptcy against Filas and received dividends...