Tobias v. Towle, 25089.

• Decision Date: 24 September 1934
• Docket Number: 25089.
• Citation: 35 P.2d 1114,179 Wash. 101
• Parties: TOBIAS v. TOWLE et al.
• Court: Washington Supreme Court

35 P.2d 1114

179 Wash. 101

TOBIAS v. TOWLE et al.

No. 25089.

Supreme Court of Washington

September 24, 1934

Department 2.

Appeal from Superior Court, King County; Guy C. Alston, Judge.

Action by D. S. Tobias against Elmer J. Towle, doing business under the name of the E. J. Towle Company, and another. From an adverse judgment against Towle, he appeals.

Affirmed.

Philip Tworoger, of Seattle, for appellant.

Peyser & Bailey, of Seattle, for respondent.

GERAGHTY Justice.

This is an action for delinquent rent. Trial was had Before the court without a jury. At the conclusion of plaintiff's case defendants moved for a dismissal. The motion was granted as to defendant Klotz and overruled as to defendant Towle. No evidence having been submitted other than that offered by respondent, the court made findings and conclusions, based on which judgment was entered against defendant Towle. The latter has appealed.

The appellant has for a number of years been engaged in business as a manufacturers' agent, representing on the Pacific Coast a number of Eastern companies manufacturing suitcases trunks, and leather supplies. Operating as a sole trader under the name of E. J. Towle Company, appellant maintained his principal office at San Francisco, with a branch office in Los Angeles. In 1929 an additional branch office was opened in Seattle, with defendant Klotz as manager. In February, 1930, respondent, owner of the Tobias building located in the eleven hundred block on First avenue and also on Post street in Seattle, entered into a lease, upon its face running to E. J. Towle Company, of certain space therein for three years, at a monthly rental of $75. The lease was signed by Klotz, as manager for appellant. In November, 1931 the rent was reduced from $75 to $50 per month; the transaction being evidenced by a new lease to run for the balance of the original term. This lease was likewise signed by Klotz, as manager for appellant.

According to the evidence upon the subject, appellant was informed of the lease and made no objection either as to its form or terms. Respondent did not know, nor was he ever advised until shortly Before the commencement of this action, that Klotz' authority to execute the lease on behalf of appellant was in any way challenged by the latter. On the other hand, it appears that appellant's business letterheads and order blanks bore a heading listing his main office at San Francisco, with branch offices as Los Angeles and Seattle; the address of the latter office being given as 1110 Post street. On the door of the Seattle office was appellant's trade-name. Although there is no evidence that the inscription was made at the specific instance or direction of appellant, it does appear that appellant visited the Seattle office, and the inscription on the door was, of course, apparent to him, as it was to the general public. All orders taken by Klotz were forwarded to, and filled by, appellant at San Francisco through the various manufacturers whom he represented. No books were kept at the Seattle office, but all records, including the bookkeeping, were maintained and attended to at San Francisco. Remittances upon all orders were sent to the San Francisco office. Periodically appellant would remit to Klotz the amount of his commissions. In short, the business at Seattle was conducted just as the business at San Francisco was; namely, as a part of the business of E. J. Towle Company. Respondent's rent, however, was customarily paid by Klotz' personal check. Appellant makes much of this fact in his attempt to escape liability under the lease. But, obviously, respondent, who had had his negotiations direct with Klotz, would not be expected to concern himself with the form of the rental remittances, so long as he was fully and promptly paid. While the manner of payment was a circumstance to be taken into consideration, it was not of itself conclusive of the ultimate question.

Respondent was paid the rent under the lease until December, 1932, when the premises were vacated without notice. This action is for the amount owing for the balance of the term. The court made a substantial deduction from the amount claimed, for the reason that respondent had resumed, and been in possession of, the premises during the latter part of the unexpired term.

The sole question raised by this appeal is whether appellant is liable for the act of the defendant Klotz in executing the lease.

It may be conceded that, under the evidence, no express agency was shown. Considerable argument in the brief is devoted to the question whether Klotz' acts in reference to the execution of the lease were within the apparent scope of his authority as general agent for appellant. Although there is much in the record to support the conclusion that his authority in that respect was established, we pass that question for the reason that there is another ground upon which, in our opinion, the respondent must prevail.

We think that appellant is clearly estopped to deny the authority of Klotz to enter into the lease. Appellant's theory of the case is that Klotz was conducting the Seattle business under the name of E. J. Towle Company, pursuant to an agreement with Towle that Klotz was to receive two-thirds of the commissions on all orders, from which he personally was to pay all expenses, including rent. There was some evidence to that effect. However, if there was any such arrangement, it was secret between Klotz and appellant. But, regardless of the actual working arrangement between appellant and Klotz, the latter was held out to the general public, including respondent, as the general agent of appellant. The Seattle business was in all respects conducted under the trade-name of appellant with his full knowledge. He had not...