Harding v. Home Inv. & Sav. Co.

• Decision Date: 24 April 1930
• Citation: 49 Idaho 64,297 P. 1101
• Court: Idaho Supreme Court
• Parties: HARDING et al. v. HOME INV. & SAV. CO. et al.

297 P. 1101

49 Idaho 64

HARDING et al. v. HOME INV. & SAV. CO. et al.

Supreme Court of Idaho

April 24, 1930

For former opinion, see 49 Idaho, 64, 286 P. 920.

James R. Bothwell and W. Orr Chapman, both of Twin Falls, for appellants.

Walters, Parry & Thoman and J. R. Keenan, all of Twin Falls and S. T. Lowe, of Burley, for respondents.

OPINION

GIVENS, C. J.

The petition for rehearing makes four points: First, it is urged that the court went beyond its duties as an appellate court in rejecting the finding of the trial court that the investment company was not the agent of the insurance company, and, in effect, making a finding of its own that an agency existed. Second, it is urged that the court erred in its conclusion that the investment company was the agent for the insurance company. Third, petitioner contends that the court erred in concluding that the insurance company was responsible for the particular acts of the investment company in question, even though it be conceded that the investment company was the agent for the insurance company in the renewal negotiations.

With reference to the question of agency, there was no substantial conflict in the evidence. In brief the evidence established (1) that the investment company and the insurance company had entered into an agreement in which it was expressly provided that there should be no agency relationship between them; (2) that in the applications for a loan which Harding signed, it was expressly provided that the investment company should be his agent for the purpose of procuring it; and (3) a certain course of dealing set out in the opinion concerning which there is no substantial conflict in the evidence.

From these facts the trial court concluded as a matter of law that the investment company was not in this instance an agent for the insurance company. In reaching a different conclusion on the basis of these facts this court has not trespassed on the prerogatives of the trial court. The question of agency, where there is no substantial conflict in the evidence, is one of law. 2 C. J. 961. That the trial court considered the question here to be one of law is indicated by reference to the conclusions of law in which No. 1 is as follows: "That with respect to the transactions in the Findings of Fact set forth, the Investment Co. was not the agent of the Insurance Co."

Assuredly, if the question is one of law, this court is not bound by a conclusion of the trial court.

The second point raises the question of whether this court correctly determined, on the basis of the fact set out above, that the investment company was the agent for the insurance company. In this connection petitioner relies chiefly on one paragraph from the three loan applications submitted by Harding to the investment company as follows: "The Home Investment & Savings Co. of Salt Lake City, Utah, is my agent to procure the above loan; principal and interest payable at such place as the lender may direct; to receive the avails there for me; to receive and transmit for me my funds for the payment of interest or of principal on said loan as it may from any cause from time to time become due and payable."

This is by no means conclusive on the question of agency. The rule, well supported by authority, is stated in 2 C. J. 447 as follows: "Thus the fact that the application for the loan recites that the intermediary is the agent of the borrower is not controlling if the facts and circumstances are such as to create an agency in behalf of the lender as a matter of law."

The rule stated in the American Law Institute Restatement as quoted in Burlington Sav. Bank v. Prudential Ins Co., 206 Iowa, 475, 218 N.W. 949, 951, is as follows: "Where a person is unquestionably the agent of one party or the other in a...