Northwest Calf Farms, Inc. v. Poirier, 3-1085-A-262

• Citation: 499 N.E.2d 1165
• Decision Date: 19 November 1986
• Docket Number: No. 3-1085-A-262,3-1085-A-262
• Parties: NORTHWEST CALF FARMS, INC., David Weaver, Jr., Appellants (Defendants Below), v. Omer POIRIER, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 1165

499 N.E.2d 1165

NORTHWEST CALF FARMS, INC., David Weaver, Jr., Appellants (Defendants Below), v. Omer POIRIER, Appellee (Plaintiff Below).

No. 3-1085-A-262.

Court of Appeals of Indiana,

Third District.

Nov. 19, 1986.

Rehearing Denied Jan. 21, 1987.

Richard K. Muntz, Muntz & Vanderbeck, P.C., LaGrange, for appellants.

Bill D. Eberhard, Jr., Tim J. Cain, Eberhard & Cain, P.C., LaGrange, for appellee.

STATON, Presiding Judge.

Omer Poirier sued David Weaver, Jr., and Northwest Calf Farms (Northwest) on an account stated, alleging that Weaver had purchased cattle from Poirier as an agent for Northwest. Joint and several judgment was entered against Northwest and Weaver in the amount of $86,967, including prejudgment interest and $1,500 in attorney fees. The trial court awarded Poirier additional attorney fees in its order on the parties' motions to correct error. Northwest appeals, raising four issues, which we restate as follows: ¹

I. Was there sufficient evidence to support the trial court's findings of fact and conclusions of law?

II. Did the trial court err in basing its judgment on the theory of joint venture, which was raised for the first time in Poirier's post-trial brief?

III. Did the trial court err in basing judgment on a theory involving a violation of the Packers and Stockyards Act, 7 U.S.C. Sec. 181 et. seq., because it was raised for the first time in Poirier's post-trial brief, and because the Act creates a specific statutory cause of action which Poirier did not pursue?

IV. Did the trial court err in awarding Poirier attorney fees based on an English statute, 17 Rich. II, c. 6 (1393)?

We affirm in part and reverse in part.

I. Sufficiency of Evidence

Northwest challenges the sufficiency of the evidence to support the trial court's findings of fact and conclusions of law. When the trial court has entered special findings, we apply a two-tier standard of review. First, we must determine whether the evidence supports the findings, and then we must determine whether the findings support the judgment. Keystone Square v. Marsh Supermarkets Inc. (1984), Ind.App., 459 N.E.2d 420, 422. Special findings will be set aside only if they are clearly erroneous, that is, if the record contains no facts or inferences supporting them. Best v. Best (1984), Ind.App., 470 N.E.2d 84, 86.

The facts most favorable to the judgment are as follows: Sometime in 1978, David Weaver, Jr., who had no license of his own to buy or sell cattle, entered an arrangement with Northwest under which he would be listed on Northwest's Indiana Cattle Dealers license, as well as on its federal license. Weaver displayed these licenses in his Topeka, Indiana office, received mail at this office in Northwest's name, and had invoices printed with Northwest's name on them. Northwest gave Weaver a corporate checkbook and authorized him to draft checks on its corporate account for the purchase of cattle. Weaver was to pay Northwest 35 percent of any profits from the sale of cattle purchased on Northwest's account.

In late 1978, Weaver negotiated with Poirier, a Canadian citizen, to purchase cattle from Poirier. Weaver represented to Poirier that he was acting under Northwest's license as its agent. Poirier had dealt with Weaver before this, but only when Weaver was selling under a valid dealer's license. ² Before Poirier began selling cattle to Weaver in late 1978, he telephoned Robert Wassenaar, president of Northwest, to confirm that Weaver was acting as Northwest's agent and that Northwest would pay for cattle Poirier sold to Weaver. Wassenaar confirmed this.

Between late 1978 and September 1981, there were over 150 separate transactions between Poirier and Weaver. Weaver drafted checks on Northwest's account to pay for cattle bought from Poirier, and the checks were honored by Northwest's bank. Regardless of whether Weaver paid Poirier with his own personal check or a Northwest check, Poirier credited them to one account--Northwest's.

During this same period of time, Weaver and Poirier conducted two transactions independently of Weaver's work for Northwest. On one occasion, Poirier shipped Weaver seven horses and took Weaver's personal checks in payment as Weaver sold the horses. On another occasion Poirier shipped Weaver 56 heifers, for which Weaver gave Poirier a personal note for $39,090.

In 1982, Northwest requested that Poirier prepare a statement of its account with him. Poirier prepared such a statement, on September 17, 1982, on invoices 534 and 535, and sent copies to both Northwest and Weaver. The statement reflected a balance due of $114,284.44, including $39,090 on the personal note Weaver had given Poirier. Neither Northwest or Weaver denied liability on the account until after this lawsuit was commenced, on January 12, 1983. At trial, no records were produced to prove that they had paid any part of the balance.

The trial court entered judgment against Weaver individually in the amount of $60,400--principal plus prejudgment interest on the personal note he had given Poirier. It entered joint and several judgment against Northwest and Weaver in the amount of $86,967, for the remaining balance on the account, plus prejudgment interest and costs. Northwest was given a right of indemnity for any contribution it made over 35 percent of the judgment, and Weaver was given a similar right for any contribution over 65 percent.

The trial court based its initial judgment against Northwest on a joint venture theory, but in its order on the motions to correct errors, it modified its findings of fact and conclusions of law to support a theory of apparent authority, as well.

The Restatement (Second) of Agency Sec. 8 defines apparent authority as follows:

Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other's manifestations to such third persons.

See also Herald Telephone v. Fatouros (1982), Ind.App., 431 N.E.2d 171, 175; Stuteville v. Downing (1979), Ind.App., 391 N.E.2d 629, 631. The belief of the third person must have a reasonable basis. Stuteville, supra.

The trial court found that Weaver operated under Northwest's Indiana and federal licenses to buy and sell cattle, and displayed these licenses in his Topeka, Indiana office. Before Poirier began selling cattle to Weaver, he telephoned Northwest to verify that Weaver was working as its agent, and Northwest's president, Robert Wassenaar, confirmed this. Weaver often paid for cattle Poirier sold to him with checks drawn on Northwest's account, which were honored by Northwest's bank. While Poirier did take a personal note from Weaver for 56 heifers, the trial court found that this transaction was independent from the nearly 150 other transactions in which it found that Weaver acted as Northwest's agent, with Poirier relying on Northwest as principal.

There is evidence to support these findings, and the findings in turn support the trial court's judgment. Because we find that the judgment is supported under a theory of apparent authority, we need not discuss the joint venture theory.

Northwest also challenges the trial court's finding of an account stated. An account stated has been defined by this court as "an agreement between parties that all items of account and the balance struck are correct, together with a promise, express or implied, to pay the balance." Urbanational Developers, Inc. v. Shamrock Eng'g, Inc. (1978), Ind.App., 372 N.E.2d 742, 750. The agreement may be inferred from failure to object within a reasonable time after receipt of the statement. Id.; Burns Construction, Inc. v. Valley Concrete (1975), Ind.App., 322 N.E.2d 404, 406.

The trial court found that Northwest requested that Poirier prepare a statement of its account reflecting the balance Poirier believed Northwest owed him. On September 17, 1982, Poirier prepared such a statement on invoices 534 and 535, sending a copy to Northwest. Northwest received a copy of the two invoices, and it had not denied liability on the account as stated when this lawsuit was commenced on January 12, 1983. Northwest offered no evidence that it had paid any part of the balance stated. These findings are not clearly erroneous, and they support the trial court's judgment on the account stated.

II. Joint Venture

Northwest argues that the trial court erred in basing its judgment on a theory of joint venture, since that theory was not raised by Poirier until his post-trial brief. As we have discussed already, the trial...