Miller v. Blunck

• Decision Date: 13 June 1913
• Citation: 24 Idaho 234,133 P. 383
• Parties: L. L. MILLER, Appellant, v. L. A. BLUNCK, Respondent
• Court: Idaho Supreme Court

133 P. 383

24 Idaho 234

L. L. MILLER, Appellant, v. L. A. BLUNCK, Respondent

Supreme Court of Idaho

June 13, 1913

SUFFICIENCY OF EVIDENCE-REVERSAL ERROR.

1. Where there is a conflict in the evidence, and substantial evidence supports the findings and judgment, this court will not reverse the judgment.

2. Held, in this case, that there is substantial evidence to support the findings and judgment.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

An action for debt for the sale of personal property. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

G. W Lamson, for Appellant.

The acts and conduct of the respondent constitute a ratification of the acts of Barteau, as agent either in the capacity of exclusive agency or as a partner of Blunck. (31 Cyc. 1263.)

It was the duty of respondent, upon the receipt of statement and demand for payment, to have informed the appellant of the true relationship between him and Barteau, if such relationship were other than indicated by the action of the appellant.

"As a general rule, the principal, upon learning of the unauthorized act of the agent, if he does not intend to be bound thereby, must within a reasonable time repudiate it." (31 Cyc. 1275.)

George H. van de Steeg, for Respondent.

The sharing of profits is evidence that he who shares them is a partner, but not conclusive evidence. The intention of the parties must control. The relation of partners is formed by contract, or by the acts of the parties which amount to a contract. (Johnson v. Rothchilds, 63 Ark. 518, 41 S.W. 996; Parchen v. Anderson, 5 Mont. 438, 51 Am. Rep. 65, 5 P. 588.)

"Where there has been but a single transaction, pretty clear evidence of a partnership, of an intent by all of the associates to create a partnership, is required." (30 Cyc. 372, 383.)

The evidence that there was no partnership also proves that there was no intention on the part of the respondent to constitute Barteau his agent. The facts taken as a whole should be examined into on the question of agency. (1 Am. & Eng. Ency 948, 950.)

"The party setting up agency must prove it; and to establish agency the evidence must be clear and convincing." (Ames v. Murray Mfg. Co., 114 Wis. 85, 89 N.W. 836.)

"Where evidence is conflicting on authority, agency cannot be implied." (Droste v. Metropolitan Hotel Supply Co., 69 A.D. 611, 74 N.Y.S. 613.)

STEWART J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This action was instituted by the appellant to collect a balance due in the sum of $ 462.80 upon the purchase price of 630 boxes of apples alleged to have been sold by appellant to the respondent. The defendant denied the sale and denied the payment of $ 250 as part payment on the purchase price of the apples, but admits that $ 250 of his money was so applied and paid to plaintiff by one Sid Barteau, and the defendant alleges that Barteau wrongfully and without warrant or authority from him, and without his knowledge, did so pay and apply the funds of the defendant as payment upon said sale, and denies that the respondent is indebted to plaintiff in the sum of $ 462.80 or any sum.

The cause was tried by the court and findings of fact were made as follows: (1) That the plaintiff did not sell and deliver on the 18th day of October, or at any time, the apples described in the complaint, and defendant did not promise to pay the sum of $ 712.80 for such apples; (2) That the defendant did not pay plaintiff the sum of $ 250, or any sum at all, to apply as part of the purchase price of said apples, and that the same was paid without any warrant or authority from the defendant; (3) That the defendant is not indebted to the plaintiff in the sum of $ 462.80, or any sum at all, on account of apples purchased by him from the plaintiff, or sold and delivered to the plaintiff.

As a conclusion of law the trial court finds that the plaintiff is not entitled to judgment against the defendant for the sum prayed for, and that plaintiff take nothing by the action, and that the defendant recover judgment. Judgment was rendered accordingly.

The facts as shown by the evidence are about as follows: That prior to the transaction involved the defendant and one Sid Barteau had a conversation at Nampa which resulted in the purchase by Blunck of Barteau's crop of fancy and extra fancy apples at the agreed price of $ 1.35 per box; that said parties estimated that Barteau's crop would amount to about three cars; that Barteau should ship the apples to Blunck at New York for the New York market. It was also agreed that Blunck would make arrangement at a bank in Nampa whereby the bank would advance to Barteau the sum of $ 250 on each car of Barteau's crop of apples purchased by Blunck, upon presentation to the bank of the bill of lading. This arrangement applied to Barteau's crop of apples and not to any other apples that Barteau might ship to Blunck, and this is shown clearly by the evidence.

The agreement between Barteau and Blunck was entered into at Nampa, and was made before Blunck and Barteau discussed or made reference to any other apples purchased from anybody else, other than the crop of Barteau. Another conversation was had between Blunck and Barteau relative to the shipment of apples, on the day Blunck left Nampa for New York, wherein Barteau told Blunck that he might be able to pick up apples and ship them to him. This was with reference to apples other than the Barteau crop; in this conversation Blunck agreed to keep Barteau posted as to market conditions, and to notify him when to ship the apples in case Barteau picked up any others. Blunck in this conversation in no way authorized Barteau to buy any apples for him, but simply agreed with Barteau that he would look after the apples that Barteau picked up after they arrived at the market, if Barteau cared to pick up some and ship them to him at New York, and it was then agreed that Barteau have for his services in picking up and shipping the apples one-half of the profits realized upon the sales made by Blunck in New York.

After the arrangement had been made with Barteau Blunck left for New York, and from New York Blunck wrote Barteau a letter of explanation and information so that Barteau could decide whether or not he cared to ship any apples that he might pick up, and in that letter Blunck tells Barteau that he does not want to take any chances himself; tells Barteau how the apples are sold, and that they will bring just what they are worth.

At this time L. L. Miller, the appellant, and George B. Bradley were partners under the firm name of Nampa Grain and Elevator Company, and were engaged in buying and selling fruit, grain and other farm produce as wholesalers. On the 18th of October, the appellant and Bradley had a car of apples packed and loaded ready for shipment to Texas. Barteau had witnessed the packing of all or a portion, and opened negotiations with Blunck with the view to Blunck's purchasing the car, and Barteau testifies that he had a transaction with Bradley, the partner of appellant: "He said he had a carload of apples loaded, and I said, 'Mr. Blunck wants apples very badly; he thinks he can do well with them. What will you take for them?' They told me and I wired Blunck there was a car of apples on the track loaded. . . . I got a telegram back, a night letter, next day, to ship the apples to a certain commission house. . . . I wired Blunck first."

"Nampa, Idaho, Oct. 17, 1911.

"L. A. Blunck,

"307 West 98th St., New York.

"Car loaded can buy one fifteen two fifty Delaware Red hundred Black Twig hundred fifty Seek no Farther fifty Baldwin all fancy and extra fancy packed together eighty choice at dollar.

"Bolden bot Nonce apples answer quick.

"BARTEAU."

"New York, N. Y., Oct. 18, 11.

"Sid B. Barteau,

"Nampa Idaho.

"I wired this A. M. from Rae and Hatfield office to send car to them meaning Delaware Red Black Twig Baldwin which you wired me about will get about two twenty five for them here the other apples sent to Fanning wire size of this lot for Rae and Hatfield.

"H....