Repanich v. Columbia & Northern Fishing & Packing Co.

• Decision Date: 18 July 1925
• Docket Number: 19212.
• Court: Washington Supreme Court
• Parties: REPANICH v. COLUMBIA & NORTHERN FISHING & PACKING CO.

237 P. 1012

135 Wash. 429

REPANICH v. COLUMBIA & NORTHERN FISHING & PACKING CO.

No. 19212.

Supreme Court of Washington

July 18, 1925

Department 2.

Appeal from Superior Court, Cowlitz County; Homer Kirby, Judge.

Action by Jack Repanich against the Columbia & Northern Fishing &amp Packing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Battle, Hulbert, Gates & Helsell and Edward G Dobrin, all of Seattle, for appellant.

R. W Greene, of Bellingham, for respondent.

HOLCOMB J.

This is an action to recover from appellant the value of certain fish alleged in two causes of action to have been sold to it through one Banich, as its agent. The complaint originally alleged that the sale was made to appellant; then by amendment the sale to appellant's agent, Banich; then by a further amendment during the trial of the case certain facts alleged to constitute estoppel to deny the agency of Banich are pleaded to the effect that certain instructions of appellant were given out to deliver fish subsequent to August 10, 1921, to a scow belonging to it in Ilwaco, and that three or four fishing boats could be used was communicated on August 10, 1921, to respondent, acted upon by him, and that by reason thereof appellant is estopped by its conduct to deny the agency. The amendment at the trial was opposed by appellant, and an exception taken to its permission. All of the allegations of agency and of sale of fish to appellant were denied.

Fourteen errors are claimed, the first four of which are argued together by appellant, to wit: Error in granting judgment on the verdict, in refusing to grant judgment to appellant n. o. v., in refusing to grant appellant a nonsuit, and in refusing to direct a verdict for appellant at the close of all the testimony. Under this group the sufficiency of the evidence to establish agency on the part of Banich, either actual or apparent, or by estoppel, is argued; it being claimed that Banich was an independent buyer.

An examination of the statement of facts and exhibits discloses that there was ample direct and circumstantial evidence on which to establish agency prima facie, and of the facts and circumstances testified to by respondent's witnesses and competent to prove agency by estoppel. In other words, actual agency was proven prima facie, so that it was a question for the jury, and so also was agency by estoppel, which would simply be corroboratory of the actual agency. For instance, without going into the evidence in great detail, there is evidence that Banich was paid a commission for buying fish for appellant; that he was furnished money at frequent intervals, either as advances with which to buy fish for appellant, or otherwise, not satisfactorily explained; that Banich operated a launch called the 'Oregon' and a fishing scow at Ilwaco; and that appellant guaranteed the rent for the 'Oregon' and paid other bills incurred in its operation. There are exhibits which indicate that Banich was actually on the ledger account of appellant and that he received pay or compensation on a monthly basis as commission. There are other details in the evidence which, though contradicted by the testimony in behalf of appellant, all went to the jury, and were resolved in favor of respondent.

The law governing the question of agency, both express and implied, as stated by the court to the jury, was apparently accepted by appellant, for no exceptions were taken to the instructions.

It is contended by appellant that aside from declarations by Banich and by other witnesses for respondent in the case, chiefly fishermen, there is no evidence to show the existence of an agency on the part of Banich for appellant, and that such declarations are inadmissible.

It is true that the mere declarations by a pretended agent to third persons of his agency or of his pretended authority are not sufficient to establish agency; but, on the other hand, if the fact of agency be otherwise established prima facie, then the acts and declarations of the alleged agent are admissible. Wharton v. Tierney-Toner Co., 126 Wash. 216, 217 P. 998; Beeler v. Pacific Fruit & Produce Co. (Wash.) 233 P. 4. See, also, Lemcke v. Funk & Co., 78 Wash. 460, 139 P. 234, Ann. Cas. 1915D, 23; O'Daniel v. Streeby, 77 Wash. 414, 137 P. 1025, L. R. A. 1915F, 634; Driver v. Galland, 59 Wash. 201, 109 P. 593.

The trial court, when disposing of appellant's motion for a new trial or for judgment n. o. v., stated:

'I have gone over the testimony, and am of the opinion that there was sufficient evidence of agency to carry that question to the jury. If there was then the question of its sufficiency was a matter for the jury to weigh and determine. Having resolved the evidence against the defendant company, I feel that I would be invading the province of the jury in setting the verdict aside and granting judgment non obstante. I do not believe there were any errors of law justifying the granting of a new trial. I could grant one if I thought the evidence insufficient; but this case has been tried twice upon practically the same testimony and in both instances the jury has thought the testimony sufficient. I do not see that there is anything to be gained by sending this to another jury and the motion for a new trial will also be denied.'

Thus the trial court, having weighed the sufficiency of the evidence, in passing upon the motion for a new trial, and the evidence as a whole, in passing on the motion for judgment n. o. v., felt compelled to deny both. And we agree that the motion for judgment n. o. v. could not have been properly granted, and that the motion for a new trial was properly denied. Other alleged errors respecting the admission and rejection of evidence have been examined and found to be without merit, or without...