Petty v. Borg

• Decision Date: 20 July 1944
• Docket Number: 6684
• Citation: 106 Utah 524,150 P.2d 776
• Court: Utah Supreme Court
• Parties: PETTY et al v. BORG

150 P.2d 776

106 Utah 524

PETTY et al v. BORG

No. 6684

Supreme Court of Utah

July 20, 1944

Rehearing denied November 10, 1944.

Appeal from District Court, Third District, Salt Lake County; C. E BAKER, Judge.

Claim and delivery action by Charles G. Petty and Maggie C. Petty doing business under the firm name and style of Petty Motor Company, against Kenneth Borg to recover from defendant a Ford station wagon or its value. Judgment for plaintiff, and defendant appeals.

Affirmed.

MULLINER, PRINCE & MULLINER and F. RAY BROWN, all of Salt Lake City, for appellant.

ALLEN G. THURMAN, of Salt Lake City, for respondents.

WADE Justice. WOLFE, C. J., and McDONOUGH, J., LARSON, Justice, TURNER, District Judge, concurring. MOFFAT, J., deceased.

OPINION

WADE, Justice.

Plaintiff, a partnership known as Petty Motor Company, brought this action in claim and delivery to recover from the defendant Kenneth Borg a de luxe Ford Station Wagon or its value. From judgment for plaintiff, defendant appeals. The facts are as follows:

On May 31, 1941, R. C. Felsted, State Procurement Officer for the Treasury Department of the Federal Government, pursuant to previous bid, gave to plaintiff a purchase order for the purchase by the United States Government for the National Youth Administration of four de luxe Ford Station Wagons at $ 831 each to be delivered to Cliff Bletzacher at Salt Lake City, Utah. Thereafter, the defendant, an engineer employed by Mt. Pleasant City on a W. P. A. project sponsored by it, desiring a new state wagon for his private use, contacted Felsted, who told him he could obtain one for him, whereupon he gave a cashier's check made payable personally to Felsted in the sum of $ 831.50 as the purchase price of a new de luxe Ford Station Wagon. Felsted thereupon gave to plaintiff a second purchase order which purported to order for purchase by the U.S. Government a de luxe Ford Station Wagon for the Works Projects Administration, c/o City Recorder, Mt. Pleasant, Utah. Feltsed did not pay the money he received from defendant to the Government or to plaintiff, and the second order was not authorized by the Government and no record or copy thereof was ever placed on or kept in the Government records or files.

On July 8, 1941 Felsted, purporting to act as State Procurement Officer of the Treasury Department, requested in writing that plaintiff deliver to defendant the station wagon in question "for delivery to the project at Mt. Pleasant, Utah." And accordingly, plaintiff delivered the same to defendant who gave a receipt therefor to that effect. At the same time Felsted gave defendant a letter authorizing him to assume custody of the station wagon and to use, sell or dispose thereof as he saw fit. Thereupon defendant transferred this station wagon to his son Grant Borg, who obtained a license therefor and later took it out of the state where it remained until after this suit was commenced, but was returned to defendant in Utah in January, 1943. Plaintiff was able to obtain only three other de luxe Ford station wagons to fill the first purchase order, but later obtained and substituted for one of the de luxe station wagons ordered a super de luxe station wagon, for which Felsted assured plaintiff it would receive the regular price which was greater than the price called for by the purchase order.

In due course plaintiff filed its claim with the government for payment for these five station wagons. The government paid $ 3,326 for the four station wagons delivered to the N.Y. A. under the first purchase order but expressly refused to pay for the station wagon delivered to the defendant under the second order on the ground that such purchase was a personal transaction of Felsted and was not authorized by the government and the government had received no benefit therefrom. Thereupon plaintiff attempted to negotiate a settlement with Felsted who was then not in the government employment, he having left the state. Plaintiff also called the matter to the attention of the defendant but failed to make any collection thereon and commenced this action on November 20, 1943, without first demanding possession.

The court found in substance the foregoing and also the following facts: That Felsted signed and delivered to plaintiff a purchase order in the usual form used by the Treasurery Department of the United States Government in purchasing automobiles, purporting to order an automobile of the style and type delivered to the defendant for the use of the government; that thereafter the defendant represented to the plaintiff that he was authorized by Felsted to receive delivery of said automobile as the agent of the government, pursuant to the purchase order; that the purchase order was in fact not authorized by the government or any agency thereof but was issued by Felsted in violation of law and the government did not thereby become obligated to pay therefor; that the defendant did not receive delivery thereof on behalf of the government, but acted in his own behalf only, with the intention of using and disposing of the automobile for his own private purposes as he saw fit; that in delivering said automobile to defendant, the plaintiff believed in and relied on the representations that it had entered into a valid contract with the United States Government to sell said automobile to the government, and believed that pursuant to such contract it was delivering the automobile to the defendant as the agent of the government and that the government thereby became obligated to pay the purchase price therefor, that otherwise plaintiff would not have delivered the said automobile to the defendant; that the government has not paid the purchase price thereof but has refused and still refuses so to do. To some extent these findings are mixed questions of law and fact, but the facts found are supported by the evidence and must be taken by us as true.

Defendant argues that the payment by the government of $ 3,326 was in fact a payment of the purchase price of the four de luxe station wagons delivered by plaintiff; three to the N.Y. A. and one to the defendant. That it is the super deluxe delivered to the N.Y. A. which has not been paid for. This argument is not well taken. The defendant's money which he paid to Feltsed was never paid to the government or to plaintiff. The government paid the $ 3,326 as the purchase price of the four wagons delivered to the N.Y. A. under the first purchase order, the exact amount called for by that order. The station wagon received by defendant was delivered to him under the second purchase order. This order the government, as shown by Exhibit "G," expressly refused to recognize or pay for the wagon delivered thereunder. Thus plaintiff has not been paid for the station wagon delivered to defendant.

Defendant contends that Exhibit "G" was inadmissable in evidence under the hearsay rule. This exhibit purports to be a letter from Clifton E. Mack, Director of Procurement, Treasury Department at Washington. It was addressed to plaintiff and referred to plaintiff's claim for $ 831.50 for the purchase price of the station wagon delivered to defendant and stated that the purchase in question was a personal transaction of Felsted, unauthorized by any governmental requisition therefor and resulted in no benefit to the government and therefore there is no basis for governmental liability and informed plaintiff that the claim cannot be certified for payment. Plaintiff did not offer this letter to prove the nature of the transaction to be as therein stated. Those facts were proved by other evidence. If this letter is what it purports to be, and no objection was made that it was not properly identified, it constituted an official refusal by the government to allow or pay plaintiff's claim. That question being one of the issues in the case its admission in evidence did not violate the hearsay rule. See Jones on Evidence, 4th E., Section 297; 22 C. J. 194; Wigmore on Evidence, 3rd Ed., Sections 1360 to 1363.

Defendant insists that the misconduct of Felsted is immaterial in determining the rights of these parties; that defendant is no more responsible for Felsted's misconduct than is plaintiff; that even if the government has been imposed on it is not complaining and infers that therefore no one else can. The government has no reason to complain. It merely refused to be bound to Felsted's acts and refused to pay for the station wagon delivered to defendant. It is plaintiff or defendant who must suffer by reason of his misconduct. Had the government paid the purchase price of the station wagon in question, then the situation would be different. If plaintiff has lost its title or right of possession to this station wagon it did so as a result of the transactions between plaintiff and Felsted; therefore, the acts of Felsted become material in determining the rights of these parties in this station wagon.

Defendant seems to argue that Felsted in his dealings involved in this case, was acting as the agent of the government and within the scope of his authority, and that the government is bound thereby. In support thereof he cites some federal statutes and presidential proclamations which deal generally with the purpose of the Procurement Division of the Treasury Department at Washington. They show nothing as to his actual authority. Although he represented to plaintiff and to some extent to the defendant that he was acting as the government agent, he was not in fact acting for the government at all, nor did he intend that the government would be bound by his actions. This is evident from the facts that he kept no records or files of these transactions in the government records or files; he entered into an agreement...