Killinger v. Iest

• Decision Date: 31 May 1967
• Docket Number: No. 9619,9619
• Citation: Killinger v. Iest, 428 P.2d 490, 91 Idaho 571 (Idaho 1967)
• Parties: Gale KILLINGER, dba Killinger Electric, Plaintiff-Appellant, v. Case IEST and A. W. Tadlock, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 490

428 P.2d 490

91 Idaho 571

Gale KILLINGER, dba Killinger Electric, Plaintiff-Appellant, v.Case IEST and A. W. Tadlock, Defendants-Respondents.

No. 9619.

Supreme Court of Idaho.

May 31, 1967.

Kramer, Walker, Pope & Plankey, Twin Falls, for appellant.

Gigray, Boyd & Downen, Caldwell, for respondents.

SMITH, Justice.

Appellant has appealed from a judgment of involuntary dismissal of his action directed against respondents, and from an order denying his motion for a new trial.Appellant operates an electric appliance repair shop in Twin Falls.Respondent Iest resides in Parma; he owns a farm situated north of Shoshone, herein referred to as the Shoshone farm.Respondent Tadlock was Iest's tenant under an oral lease of the Shoshone farm.

Appellant alleged in his complaint that Tadlock, as tenant and agent of Iest, 'engaged'appellant to furnish and install an electric irrigation pump on the Shoshone farm; that Tadlock in his personal capacity also promised to pay for the pump; that appellant performed the obligations of the oral contract; and that the respondents, and each of them, wrongfully refused to pay the agreed price for the pump, related materials, and installation services.

The cause was tried to the district court sitting without a jury.Appellant's case-in-chief, based upon the testimony of appellant, respondents, and appellant's assistant, Ralph Taylor, revealed the circumstances surrounding the transaction to be as follows:

On May 21, 1963, Tadlock by telephone requested appellant to repair an electric pump used for irrigating the Shoshone farm.Appellant and Ralph Taylor drove to the farm, met with Tadlock, and inspected the malfunctioning pump.The pump appeared to require extensive repair, so appellant loaded the machine into his truck and transported it to Twin Falls.At that time appellant was unaware that Iest owned the Shoshone farm and that Tadlock was merely Iest's tenant.

The next day, May 22nd, Tadlock went to Twin Falls to inspect the pump.The shaft was broken and the pump was generally in poor condition.Tadlock felt that too much time would elapse before the pump could be restored, and that a new, more efficient pump should be immediately installed to irrigate Tadlock's crops.According to appellant's testimony, Tadlock then informed appellant that Iest owned the farm and that he, Tadlock, was Iest's tenant.Tadlock further asserted that he had authority from his landlord, Iest, 'to make this extensive repair and improvement on the place,' that 'he had authority from his landlord to repair the pump or purchase a pump,' and that Iest would pay the agreed price.Appellant admitted on cross-examination that he made no attempt to contact Iest for confirmation of Tadlock's asserted authority, but relied solely upon Tadlock's statements.Moreover, contrary to the allegations of his complaint, appellant testified that he never requested Tadlock to become a party to the oral contract, nor did Tadlock volunteer his personal liability on the agreed purchase price.

Appellant installed the new pump on Iest's premises on June 1, 1963.An itemized bill, amounting to $2,047.89, covering machinery, material and installation charges, was mailed to Iest in Parma sometime during the second week of June.This was Iest's first notice that appellant had installed a pump on the Shoshone farm and that Iest was expected to pay.Shortly after Iest received the bill, appellant telephoned Iest and requested payment.Iest refused and denied in unequivocal terms that Tadlock had any authority to bind Iest on the purchase of the irrigation pump.

Appellant sought to establish Tadlock's rights and duties under his oral lease agreement with Iest.Tedlock, called as an adverse withness under I.R.C.P. 43(b), testified on cross-examination by appellant's counsel that his duties as Iest's tenant had been simply to farm the Shoshone farm.The costs of seed and utility bills were divided between landlord and tenant.A major expenditure for installation of a concrete pipeline was ordered personally by Iest.On one occasion, Tadlock had a broken shaft on Iest's tractor repaired, but Tadlock himself paid the bill without consulting Iest.There was no evidence that cash, a portion of Tadlock's crops, or other consideration passed to Iest as the consideration under the oral lease.Tadlock testified, finally, that he used the pump for irrigation purposes throughout the 1963 crop season.

Appellant then called respondent Iest who testified that he customarily ordered work and paid the bills himself.Iest added that Tadlock's conduct was unprecedented and definitely beyond his powers and duties as Iest's lessee.

At the close of appellant's evidence, respondent Iest moved for an order of involuntary dismissal pursuant to I.R.C.P. 41(b), on grounds that appellant's evidence was insufficient to prove Iest's liability on the alleged parol contract.Respondent Tadlock also moved for involuntary dismissal, contending that upon the evidence and the law he was not liable to appellant.

The trial court granted both motions and thereafter entered separate judgments, one dismissing the action as to respondent Iest, and the other, dismissing the action as to respondent Tadlock.In granting respondents' motions for dismissal, the district court took the view that appellant failed to introduce substantial evidence to show Iest's liability on a theory of agency, or that Tadlock was indebted to appellant as a party to the parol agreement.

The trial court's disposition of the action constituted a determination thereof on the merits.Grieser v. Haynes, 89 Idaho 198, 404 P.2d 333(1965);Stratton v. Stratton, 87 Idaho 118, 391 P.2d 340(1964).On this appeal, the failure of the district court to find the facts specially and state separately the conclusions of law, as required by I.R.C.P. 52(a), is not assigned as error.

Appellant asserts that 'The trial court erred in granting defendants' (respondents') respective motions for involuntary dismissal * * *.'Under I.R.C.P. 41(b), the dismissal is proper only where 'upon the facts and law the plaintiff has shown no right to relief.'

We conclude that the district court properly granted the motion for dismissal of appellant's action against respondent Iest.Appellant failed to advance any competent evidence tending to establish that Iest had invested Tadlock with express or implied authority to contract for the furnishig and installation of an irrigation pump on the Shoshone farm.Appellant, by not showing how Iest benefited by any increased yield of Tadlock's crops, if such there was, also failed to establish Iest's alleged liability on a theory of ratification And, finally, appellant's contention that Iest should be estopped to deny liability must be rejected, since the evidence clearly shows that Iest never held this tenant out as having authority to contract for major improvements on the Shoshone farm.

Appellant assigns as error the district court's several rulings as to the admissibility of testimony which appellant sought to introduce against respondent Iest.

Appellant first contends that the trial court erroneously ruled that Tadlock's declarations as to the existence and scope of his authority would not be binding on Iest, the alleged principal.That ruling was proper.The declarations of an alleged agent, standing alone, are insufficient to prove the grant of power exercised by him and to bind his principal to third parties.Appellant's testimony as to Tadlock's declarations and assumptions was hearsay and inadmissible against the principal to prove the existence of Tadlock's alleged agency.Brunette v. Idaho Veneer Co., 86 Idaho 193, 384 P.2d 233(1963);Chamberlain v. Amalgated Sugar Co., 42 Idaho 604, 247 P. 12(1926);Cupples v. Stanfield, 35 Idaho 466, 207 P. 326(1922);Cox v. Crane Creek Sheep Co., 34 Idaho 327, 200 P. 678(1921);Restatement (Second), Agency§ 285(1958).

The statements by the alleged agent, as to the scope of his authority, are admissible if, at the time the statements are offered in evidence, the existence of the agency has been proven by independent evidence.Hayward v. Yost, 72 Idaho 415, 242 P.2d 971(1952);Lightner v. Russell & Pugh Lumber Co., 52 Idaho 616, 17 P.2d 349(1932);Seavey, Agency§ 105B(1964).Appellant introduced no independent evidence probative of Tadlock's alleged agency, so that no foundation existed whereby any such statements by Tadlock could serve to corroborate or define the extent of his alleged agency.

The fact of Tadlock's tenancy on Iest's property would not constitute independent evidence of agency.Unless made so by specific agreement, a tenant is not the agent of his landlord for any purpose.Denver Tramway Corp. v. Rumry, 98 Colo. 24, 52 P.2d 396(1935);Shaver v. Bell, 74 N.M. 700, 397 P.2d 723(1964);Coe v. Esau, 377 P.2d 815(Okl.1963);2 C.J.S.Agency§ 2.

Counsel for appellant, on direct examination of appellant, proposed the question:

'Now, getting back to this * * * conversation on the ranch with Mr. Iest and Mr. Tadlock * * *, at that time do you recall whether or not Mr. Iest made any statements indicating that Mr. Tadlock had the authority that he told you he had?'

The question obviously suggests to the witness the answer which appellant's counsel desired.The trial court correctly sustained respondents' objection on the ground that the question as phrased, was leading or suggestive.SeeI.C. § R9-1203.

Appellant's counsel on further cross-examination of Tadlock, called as an adverse party, attempted to question him on the subject of his alleged authority as Iest's agent. according to appellant's argument on appeal, this interrogation was intended to establish Iest's liability for the acts of his alleged agent.The trial court sustained objections by Iest's counsel to certain of those questions proposed.Counsel asked of Tadlock, first, whether Tadlock possessed authority to install a...