Kramer v. Farmers Elevator Co.
| Decision Date | 14 July 1964 |
| Docket Number | No. 43738,43738 |
| Parties | William F. KRAMER, Helen Kramer Biersmith, Joseph M. Kramer and Joseph M. Kramer, and Helen Kramer Biersmith, Executors of the Estate of Andrew A. Kramer, Deceased, Co-Partners, d/b/a Columbian Steel Tank Company, Appellants, v. FARMERS ELEVATOR COMPANY, a Corporation, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Before an act or contract can be the subject of ratification, the one who performed the act or entered into the contract must have professed, represented or assumed to have been the agent of the one alleged to have ratified the act or contract.
2. A general finding determines every controverted question of fact on which substantial evidence was introduced and raises a presumption that the trial court found all facts necessary to support the judgment.
3. It is the duty of the trier of the facts, not the appellate court, to weigh conflicting evidence and the appellate court in determining the sufficiency of evidence to support findings of fact is required to view all testimony in the light most favorable to the prevailing party.
4. The appellate court is not concerned with the credibility of witnesses or the weight of their testimony and the trier of the facts, not the court of appellate review, has the responsibility of determining what testimony should be believed.
5. In an action to recover the purchase price of grain storage bins on the theory of ratification the record is examined and it is held there was substantial evidence to support the trial court's conclusion that the party ordering the material did not profess or represent that the material was being purchased by him as agent on behalf of the defendant.
Donald E. Lyons, Kansas City, Mo., argued the cause, and Dan R. Aul, Sabetha, and Richard W. Shaw, Hiawatha, were with him on the briefs for appellants.
Harry A. Lanning, Seneca, argued the cause, and Thomas L. Medill, Jr., and William M. Drumm, Seneca, were with him on the briefs for appellee.
This appeal springs from an action to recover the purchase price of two steel grain storage bins and accessories.
The petition alleged that the order for the storage bins was placed by Robert Scraper, defendant's agent. The prayer asked for judgment against the defendant in the amount of $6,322.96 with interest and for the foreclosure of a mechanic's lien.
The answer denied that defendant had at any time ordered the storage bins and further denied that Scraper was its agent or authorized to make the purchase for it.
In their amended reply plaintiffs alleged that the defendant with full knowledge of the facts ratified the acts of Scraper and is estopped to deny liability for the purchase price.
The case was presented to the trial court on the theory of ratification of the unauthorized purchase by one professing to be an agent.
The undisputed facts will first be stated as briefly as the state of the record permits.
On June 15, 1961, the defendant entered into a written contract with Robert Scraper, doing business as Scraper Mill Service, for the construction of two grain storage bins with accessories on defendant's premises for a total price of $9,000.00. The sum of $900.00 was paid on the signing of the contract. The balance was to be paid as the material was delivered to the job site and invoices presented. The building of the bins was to be completed July 20, 1961.
On June 16, 1961, Scraper ordered the bins and accessories from plaintiffs by telephone. Sometime near the first of July, 1961, the defendant orally agreed with Scraper that the bins would be picked up in Kansas City by defendant or shipped out by rail or truck at the cost of defendant.
On July 5 or 6, 1961, Scraper left a note on defendant's elevator door informing it that the bins were ready to be picked up in Kansas City. Up to this point there is no evidence that the plaintiffs had any contract with the defendant.
On July 7, 1961, defendant sent a Mr. Leveret, an independent trucker, to plaintiffs' place of business in Kansas City to pick up the storage bins. On the same date a bill of lading was mailed to defendant by plaintiffs which described the material and stated that it was 'consigned to Farmers Elevator Company.' On the same date plaintiffs addressed a letter to defendant which reads:
'We were advised by Mr. Bob Scraper of the Scraper Mill Service, Hiawatha, Kansas that your truck would pick up the two Columbian BIG BINS, 36' diameter X 24' shell height, less bottom with 10"' auger tube in the second ring and a small door also in the second ring.
'This material has been picked up today, Friday, July 7, and should be in your hands by the time this letter reaches your company.
'We sincerely trust that the arrangements that have been made meet with your approval and that this bin will give you many years of good, satisfactory storage.
'If we can be of further help to you and your company in any way please do not hesitate to let us know.'
July 7, 1961, the plaintiffs also mailed an invoice to defendant which listed the material and showed a total amount due in the sum of $6,322.96. July 8, 1961, the material was delivered to the premises of the defendant. July 14, 1961, defendant paid Scraper the $6,322.96 mentioned in the invoice.
July 31, 1961, plaintiffs mailed defendant a statement showing a balance due of $6,322.96. Defendant wrote on the statement 'this was paid to Scraper Mill Service on July 14, 1961, and returned such statement to plaintiffs.
October 11, 1961, plaintiffs filed a mechanic's lien statement claiming a lien for materials furnished under a contract with the owner of a lease-holder interest in the premises.
The oral testimony of the respective parties, on which the trial court necessarily reached its conclusion, was in direct conflict and will be summarized in part.
Mr. Parsons, sales manager for plaintiffs, testified that on June 16, 1961, Scraper telephoned him long distance and advised him that Farmers Elevator Company of Seneca, Kansas, wanted to purchase from Columbian Steel Tank Company two Columbian big bins 36 feet by 34 feet less bottom, 10 foot auger tubes in the second ring, and small door in the second ring. He further testified that in his conversation with Scraper, Scraper said that he was authorized to make this purchase for and on behalf of the Farmers Elevator Company and that they had approved the purchase of this material from Columbian.
The testimony of Scraper is summarized in the plaintiffs' abstract as follows:
'Mr. Robert Scraper, Hiawatha, Kansas, was called as the first witness for Appellee and testified in substance that he had never ordered any material on June 16, 1961, for Farmers Elevator Company from Columbian Steel Tank Company and denied the testimony of appellant's witnesses.'
It may be here noted that if Scraper's testimony is to be given credence there was no unauthorized act, by one professing to be an agent, to be ratified.
Mr. Parsons further testified that he inspected the bins at defendant's premises and on this occasion Mr. Haverkamp told him that Mr. Scraper had obtained payment of $6,322.96 from the Farmers Elevator Company, which it owed Columbian Steel Tank Company only because he, Haverkamp, was out of town and that this would not have been paid him had he been there.
Mr. Haverkamp, who was manager for the defendant elevator company, testified that when an inspection of the bins had been made, Mr. Parsons said this type of bin would require extra bases at a cost of about $480.00, and this extra material was delivered and paid for; that the conversation as to the rest of the bill, Mr. Parsons said that Bob Scraper had not paid for these bins but had agreed to pay for this building out of his commissions. (Emphasis supplied.)
During the course of his direct examination he was asked questions to which he made answers as follows:
We pause here to point out that if the testimony of Haverkamp is to be believed plaintiffs were looking to Scraper for the payment of the account as late as August 18, 1961.
Certain questions asked and answers made by this witness on re-direct examination read:
The case was submitted to the trial court on the evidence...
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