Albert Steinfeld & Co. v. Broxholme

Plaintiff, as the assignee of Harold Steinfeld and Andrew Pizzini, brought this action to recover damages claimed to have been occasioned by the breach of an alleged contract to install tiles in a flower-store .at Tucson, Arizona. The store was owned by plaintiff’s assignors, and at the times in question was being remodeled by them. The defense was that though defendants made an offer to install the tiles the offer was revoked prior to its acceptance ; wherefore defendants asserted that no agreement was consummated, and that therefore there was no breach of contract on their part. The trial court found for defendants and entered a judgment in their favor accordingly. Plaintiff appeals from the judgment, claiming that the uncontradicted evidence shows that defendants’ offer was ac

Steinfeld and Pizzini employed an architect of the name of Bray, whose place of business is at Tucson. Defendants’ place of business is in Los Angeles.' Some time in March, 1919, one of the defendants, J. W. Broxholme, while in Tucson informally submitted to Bray certain figures at which Broxholme said that he thought his firm might install the tiles. Bray submitted the figures to his employers, who said the amount was too high and that they could not spend that much money. Thereafter Bray made certain changes in the plans for the purpose of reducing the cost, of the tiling, and on June 10, 1919, sent the altered blue-prints and sketches to defendants at Los Angeles with a request that they make a bid thereon. On June 23, 1919, one of the defendants saw Bray at Tucson and on behalf of his firm offered to do the work under the altered plans for $1,080. Bray submitted this new bid to his principals, who rejected it and told the architect “to get other bids.” They did not direct Bray to enter into a contract, but simply “to get other bids.”

Somewhere about the middle of July, 1919, Bray, learning that a Mr. Watkins, a business man of Tucson, was going to Los Angeles, asked Watkins if he would call on defendants when in Los Angeles and see if they could do the work for one thousand dollars. Pursuant to this request Watkins did call on defendants when in Los Angeles, and on July 23d saw the defendant J. W. Broxholme, discussed with him the matter of putting in another bid for the tile work, and was told by Broxholme that if the latter’s firm would be allowed to use the tiles which they then had on hand, leaving to their decision the determination of the color of the tiles, they possibly could make a bid to do the work for one thousand dollars. Watkins then sent a telegram to Bray at Tucson as follows: “Can arrange tile except shade. Wire Baltimore Hotel today.” In reply Bray immediately sent a telegram to Watkins simply saying, “O. K.” Thereupon Watkins again called on J. W. Broxholme, told the latter that he was about to return to Tucson and inquired whether he might tell Bray that defendants would do the work for $1,000. Broxholme told Watkins

Four or five days later Watkins delivered to Bray at Tucson defendants’ written offer of July 23d, and Bray, on August 1st, mailed to defendants at Los Angeles a letter reading as follows: “Tucson, Ariz. August 1, 1919. Los Angeles Mantel & Title Co., 1113 S. Hill Street, Los Angeles, California. Attention Mr. J. W. Broxholme: Dear Sir: Mr. Watkins has informed me that you are willing to go ahead with the tile work for Job 210, 44-46 North Stone avenue, for the consideration of $1000.00. Please find enclosed blue prints for work, and kindly mail upon receipt contract and detail for rough measurements for stairs, etc., giving us the necessary depth to keep back from face of finished work. This work is well along and I trust you will use every endeavor to expedite your portion of it. Yours respectfully, William Bray. ”

On August 8, 1919, defendants mailed a letter to 'Bra)'’ wherein they advised him that on account of the labor situation they would be unable to do the flower-store job. This letter was received by Bray in due course. Ever since sendr ing this letter defendants have refused to recognize themselves as bound by any contract with plaintiff’s assignors. Wherefore this action to recover damages for breach of the alleged contract.

The only evidence to which our attention has been called respecting the nature and scope of Bray’s employment is the following: Harold Steinfeld, one of plaintiff’s assignors, testifying as a witness for plaintiff, was asked in what capacity and for what purpose Bray was employed, and in reply said: “To represent me in making certain improvements in the referred to property”—the Tucson property known as the “Flower Store.” Bray, when on the witness stand, upon being asked what he was employed by Steinfeld and Pizzini to do, replied: “To get up some designs for remodeling the premises known as Howe’s Flower Store, on Stone avenue in Tucson.” It will be recalled that Bray did not take it upon himself to accept either of the two earlier bids submitted by defendants, but that he laid each before his principals for their acceptance or rejection. And when he presented defendants’ bid of $1,080 to his employers the latter did not tell him to enter into a contract at a lower and more satisfactory sum; they merely told him “to get other bids.”

The foregoing seems to be all the evidence bearing upon the subject of Bray’s authority. At most it shows no more than that Bray was employed to render services as an architect in the remodeling of the store. As such architect he had no authority to enter into any contract for any part of the work. He might receive bids and submit them to his employers for their acceptance or rejection, but he had no authority to bind them by accepting a bid from any source. He possessed only such powers as were given him by Ms contract with the owners. If, without the knowledge or consent of his principals, he could contract for tiles that were agreeable to Ms taste and at a price which accorded with Ms ideas of reasonableness, he could bind his employers to

The judgment is affirmed.

Works, J., and Craig, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on December 13, 1922, and the following opinion then rendered thereon:

In an application for rehearing by this court appellant claims: (1) That respondents are estopped from questioning the authority of Bray to enter into the contract on behalf of his principals, Steinfeld and Pizzini; and (2) that, even if respondents were not so estopped,

1. The doctrine of estoppel invoked by appellant in its petition for a rehearing is not applicable to the facts of this case. We do not question the rule that where one has accepted, acted upon and received the benefits of a contract entered into by him with another as the agent of a third person he is estopped to question the authority assumed by the agent. That, however, is not this case. Cassin v. Marshall, 18 Cal. 689 , cited by appellant, deals with facts very different from those in the case at bar. [2] The present case is controlled by the rule which obtains where the person who has entered into a contract with the unauthorized agent withdraws from it prior to its ratification or acceptance by the agent’s principal, without having acted thereon or received any benefit thereunder.

By their letter to Bray of August 8, 1919, respondents withdrew from the alleged contract which forms the basis for this action, and there is nothing in the record before us tending to show that Steinfeld or Pizzini had any knowledge of that contract prior to respondents’ withdrawal therefrom. There is nothing in the record which tends to show that Bray’s principals at any time prior to respondents’ repudiation made any attempt to ratify their agent’s unauthorized contract—assuming, without deciding, that Bray’s conduct and respondents’ letter of July 23,. 1919, would have constituted a contract had the former possessed the necessary authority. Indeed, so far as our attention has been called to the testimony, there does not seem to be any evidence of ratification of the contract by Bray’s principals prior to the commencement of the action. Until a ratification by them there was no contract binding on Bray’s principals. Until, by ratifying the contract, they placed themselves in such a position that respondents could enforce it against them, Steinfeld and Pizzini were not in a position to enforce it against respondents. Until then there was no contract binding on either party. Defendants, therefore, were at liberty to withdraw when they mailed their letter of August 8, 1919, to Bray advising him that they could not do the work.

2. Were it not for the earnestness with which appellant urges upon us the contention that the evidence shows that Bray did possess authority empowering him to consummate the contract with respondents, we should not deem it necessary to add aught to what was said by us in the opinion which we handed down when we originally passed upon the merits of the appeal. After a most careful consideration of the able argument advanced by appellant’s counsel in their petition for a rehearing, we find it impossible to give our assent to their contention.

In the findings filed by the trial court the scope of Bray’s authority is expressly defined. That court found that Steinfeld and Pizzini “employed one William Bray as their agent to prepare certain designs and sketches for remodeling said store building for and under the direction of said Harold Steinfeld and Andrew Pizzini.” If this finding is justified, by the evidence there can be no question as to Bray’s lack of authority to enter into the contract with respondents. [3] Where one who is an architect is employed to “prepare certain designs and sketches” for remodeling a building, his authority is certainly no greater than that customarily exercised by an architect employed to draw plans and to supervise and direct the construction of a building; and, as. shown • in the opinion heretofore filed, citing Schanen-Blavr Co. v. Sisters of Charity, 77 Wash. 256 [ 137 Pac. 468 ], in the absence of authority expressly or necessarily conferred by his contract of employment, it never is ° held as a matter of law that one who is employed simply to perform the usual services of an architect has any implied authority to bind his employer by entering into a contract with third persons for the performance of labor or the furnishing of material. It only remains, therefore, to consider whether the court’s finding defining Bray’s authority is supported by the evidence.

Bray himself gave an unequivocal and explicit definition of his authority by testifying that he was employed “to get up some designs for remodeling the premises known as Howe’s Flower Store.” The trial court accepted this definí-

The petition for rehearing is denied.