Boehm v. Spreckels — 65 Cal. App. 127

Majority

p. 127

[Civ. No. 4812.

First Appellate District, Division Two.

January 2, 1924.]

M. BOEHM et al., Appellants, v. JOHN D. SPRECKELS, Respondent.

Headnote

[1] Newspaper Kotjte—Agency—Termination.—A contract with a newspaper publisher for a route for the delivery of a newspaper creates an agency and does not declare a sale of property; and a sale of the subject of the agency, made in good faith by the principal, operates as a termination of the agency and is equivalent to a revocation thereof.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. E. Seawell, Judge. Affirmed.

The facts are stated in the opinion of the court.

Wm. M. Abbott, Wm. M. Cannon, K. W. Cannon, Fabius T. Finch, Paul F. Fratessa and Geo. B. Keane for Appellants.

Samuel M. Shortridge and T. J. Sheridan for Respondent.

This is an appeal from a judgment against plaintiffs upon sustaining a demurrer to their third amended complaint. The action was commenced by the filing of the complaint on January 8, 1914, and after the demurrers to the complaint and to three amended complaints were sustained judgment was entered on the last demurrer September 30, 1915. The amended complaint contains fifty-four separate causes of action, all involving claims of individuals who held paper routes and agencies for the selling and delivering within the limits of such routes of the “San Francisco Call,” a daily morning newspaper,

p. 128

which prior to the commencement of the action had been published by the defendant Spreckels in the city of San Francisco. During the pendency of the action the plaintiffs commenced a new action in the same court upon the same cause of action set forth in what is designated as the second cause of action in the complaint in the instant case. This new action was commenced on October 22, 1914, and, after demurrers were sustained to the complaint and amended complaints, judgment was entered in favor of the defendant and an appeal was taken therefrom on November 15, 1915, the same day on which the appeal here under consideration was taken. That appeal, which was numbered San Francisco No. 7692, was carried to the supreme court and decided adversely to the appellants on June 22, 1920. The case is reported as Boehm v. Spreckels, 183 Cal. 239 [ 191 Pac. 5 ]. At the same time Otten v. Spreckels, 183 Cal. 252 [ 191 Pac. 11 ], involving the same subject matter was heard and determined by the supreme court.

On this appeal it is frankly conceded by the appellants that in order to prevail the two opinions of the supreme court just referred to must be overruled. In fairness to appellants’ counsel, we should point out that their briefs were filed while the record on appeal remained with the supreme court to which the appeal was properly taken.

[1] In the Boehm case, Justice Shaw, speaking for the majority of the court, held that the contract with the publisher for a route for the delivery of the newspaper created an agency and did not declare a sale of property. The court further held that the sale of the subject of the agency made in good faith by the principal operated as a termination of the agency and was equivalent to a revocation thereof. The case, therefore, is completely determinative of the issues raised in the case before us, and upon the authprity of that case the judgment must be affirmed.

Judgment affirmed.

Langdon, P. J., and Sturtevant, J., concurred.

A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 28, 1924.

Lawlor, C. J., pro tern., Waste, J., Seawell, J., Myers, J., and Richards, J., concurred.

Cases cited

Boehm v. Spreckels 183 Cal. 239 Cal. 1920-06-22 p. 128
Otten v. Spreckels 183 Cal. 252 Cal. 1920-06-22 p. 128