O.E. Haring, Inc. v. Boylan's Private Police

• Decision Date: 04 February 1952
• Docket Number: No. 19823,19823
• Citation: O.E. Haring, Inc. v. Boylan's Private Police, 56 So.2d 588 (La. App. 1952)
• Court: Court of Appeal of Louisiana
• Parties: O. E. HARING, Inc. v. BOYLAN'S PRIVATE POLICE, Inc.

Page 588

56 So.2d 588

O. E. HARING, Inc. v.BOYLAN'S PRIVATE POLICE, Inc.

No. 19823.

Court of Appeal of Louisiana, Orleans.

Feb. 4, 1952.

Weiss & Weiss, New Orleans, Harold Marx, Jr., New Orleans, of counsel, for plaintiff-appellant.

Benjamin Y. Wolf, New Orleans, for defendant-appellee.

McBRIDE, Judge.

Plaintiff takes this appeal from a judgment dismissing its demands as of nonsuit.

The claim is for $284.79.Plaintiff alleges that it leased to defendant a Plymouth automobile for which defendant owes rental for the period beginning November 1, 1949, and ending February 8, 1950, aggregating $243.93; the balance of the claim represents the amount of damages sustained by the automobile while in the possession of the defendant.

The answer, in the main, denies the averments of the petition; defendant specially alleged that R. R. Rutherford, who purportedly acted as its agent, was without authority to make the contract on its behalf.

Before making answer, defendant interposed several exceptions, all of which were overruled.These exceptions, although reurged before us, need not be discussed, in view of the conclusions reached after a study of the merits of the case.

On December 22, 1948, Rutherford obtained from R. E. Walker Company, Inc., the automobile in question, on which date there was entered into a written car-leasing contract, R. E. Walker Company, Inc., the lessor, being represented by its president, R. E. Walker.R. R. Rutherford signed the agreement as manager for Boylan's Private Police, Inc., named as lessee.The lease term was for one year, 'or to any date lessee may elect before December 22, 1949.'On July 25, 1949, O. E. Haring, Inc., the plaintiff here, purchased the contract from R. E. Walker Company, Inc.A new contract was confected on that date, which R. E. Walker signed on behalf of 'Auto Leasing Co., Div. of O. E. Haring, Inc.,' lessor.The lessee's signature appears thusly: 'R. R. Rutherford, P. O. #1641, 318 Carondelet St., Room 410.'The claim arises out of the latter lease.

The defendant is a small corporation which operates a general private police agency.Prior to his death in September 1950, the business was under the management of its president, Milton W. Boylan, who seems to have been the owner of the controlling interest in the corporation.At the time of the trial of the cause in the lower court, the whereabouts of Rutherford, who had been discharged by the defendant on June 1, 1950, were unknown.R. E. Walker, plaintiff's witness, stated that he believed Rutherford is deceased.

The nature of the defense advanced by defendant makes it encumbent upon the plaintiff, to be successful, to prove that Rutherford was authorized to make the contract, or was held out by defendant as its agent with implied power to contract, or that the defendant either tacitly or expressly ratified his acts.Davis v. Amereda Petroleum Corp., 7 La.App. 114.

The only witnesses having knowledge of the pivotal points involved in the case are R. E. Walker, who appeared for plaintiff, and T. N. Boylan, who testified for defendant.T. N. Boylan became connected with the private police agency in October 1948, because, we gather, of the illness of his father, Milton W. Boylan.His uncontradicted testimony is that Rutherford was employed as a bookkeeper by defendant, without power to negotiate contracts.

The only semblance of proof adduced by plaintiff to establish that Rutherford was the agent of the Boylan Company is that of R. E. Walker, which is to the effect that when the contracts were executed Rutherford represented himself to be defendant's general manager and had full power to lease the automobile.Under well established law, such testimony in itself is insufficient to prove an agency.Dawson v. Landreaux, 29 La.Ann. 363;State v. Harris, 51 La.Ann. 1105, 26 So. 64;Baer v. Terry, 105 La. 479, 29 So. 886;Getty v. Chalmette Petroleum Corp., La.App., 145 So. 568;Frank Grocery Co. v. Mandel, La.App., 152 So. 775.

In a further attempt to prove the existence of the agency, Walker testified that he had several conversations by telephone with Milton W. Boylan, who informed him that Rutherford was his general manager and was competent to act for the corporation.The probative value of this evidence is nil, as the courts have repeatedly said that evidence of that character is of the weakest kind.In Commercial Trust & Savings Bank v. Thorengren et al., La.App., 122 So. 92, 94, we observed: "Admissions by one deceased, proved by a witness who cannot be contradicted, much less convicted of perjury, are the weakest kind of evidence, and scarcely worthy of any belief.'1 H. D. p. 518, No. 7;Succession of Sinnott v. Hibernia Nat. Bank, 105 La. 710, 30 So. 233;Calhoun v. McKnight, 44 La.Ann. 575, 10 So. 783;Succession of Townsend, 40 La.Ann. 79, 3 So. 488;Gordon v. Stubbs, 36 La.Ann. 631;Bodenheimer v. Bodenheimer's Ex'rs, 35 La.Ann. 1005.'

Appellant also contends that the acts of Rutherford were tacitly ratified by virtue of the defendant having made use of the automobile in connection with the operation of its business.This contention has for its foundation Walker's statements that on several occasions he saw uniformed patrolmen in the...