McDevitt v. Chas. Corriea & Bros.

Plaintiff brought this action to recover from the defendants the aggregate sum of $1,101.33, alleged to be balances due her and four other parties who assigned their claims to her prior to the commencement of this action, from the sale of turkeys to the defendants. The complaint, which was filed on the thirteenth day of January, 1923, is unverified, and, in five different causes of action, each in the form of a common count, sets up plaintiff’s own and the claims of her several assignors for goods, wares, and merchandise sold to the defendants.

The answers of defendants Chas. Corriea & Bros, and Charles Corey (erroneously sued as Charles Correy), each denied the allegations of each of the causes of action set up in the complaint. The defendants A. C. and Rose Bigger-staff failed to answer the complaint and judgment against them was taken by default.

The case as to the answering defendants was tried by the court, sitting without a jury, and the findings and the judgment were against them and the Biggerstaffs in favor of the plaintiff in the total sum of $1,068.71. The defendant, Chas. Corriea & Bros., made a motion for a new trial, which was denied, and the appeal is by said defendant from the judg'ment.

According to his answer and testimony, the defendant Chas. Corriea, at the time that the transactions herein involved took place, was a commission merchant, buying and selling farm produce in the city of San Francisco under the firm name of “Chas. Corriea & Bros.,” said Chas. Corriea being the sole owner of said business and hence the sole member of said firm. (We shall hereinafter refer to said defendant as Corriea.)

It appears that, either in the month of July or August, 1922, the defendant A. C. Biggerstaff, a resident and farmer and turkey-raiser in Tuba County, entered into some sort of understanding or arrangement with Corriea, whereby the former was to purchase and ship turkeys to the latter at San Francisco for the Thanksgiving and succeeding holiday trade in said city. Said Biggerstaff subsequently employed the defendant Charles Corey to assist him in the purchase of turkeys for the purpose stated. Corey was also a resident of and a farmer in Tuba County. A few weeks prior to Thanksgiving Day in 1922 said Biggerstaff and Corey purchased the turkeys of a number of the turkey-raisers in Tuba County and shipped them to Corriea in San Francisco.

It appears that the day immediately preceding Thanksgiving Day of 1922 there was a “slump” in the turkey market in San Francisco, with the result that the prices at which turkeys could be sold in said market were below those which Biggerstaff and 'Corey agreed to pay the plaintiff and her assignors for their turkeys. This situation provoked a controversy between A. C. Biggerstaff and Corriea, which culminated in the commencement of the present action.

The defendants A. C. Biggerstaff and Corey claimed at the trial that in purchasing the turkeys they acted under authority conferred upon them by Corriea as the agents of the latter. Corriea likewise claimed that said Biggerstaff acted independently of him and bought the turkeys upon his own responsibility, with an understanding between him and said Biggerstaff that the latter would ship such turkeys as he might purchase to him at San Francisco on consignment, and there to be by Corriea sold for said Biggerstaff.

The defendant and appellant makes these points: 1. That the findings do not derive support from the evidence; 2. That, assuming that the theory of the decision is that A. C. Biggerstaff, as the agent of Corriea, purchased the turkeys and that upon that theory the findings derive sufficient support from the evidence, the judgment, nevertheless, cannot stand, for the reason that it fixed a joint and several liability against all the defendants, whereas, in such ease, or where an action is based upon a transaction initiated and consummated for a .party through an agent, and both the principal and agent are made parties defendant thereto, the plaintiff, while having the right to make both parties defendants to the action, must, either during the progress of the trial or before the close thereof, in case the relation of principal and agent between the defendants as to such transaction is disclosed, make an election as to which of the two, the principal or the agent, he desires and intends to fix liability upon for the claim sued on. .

The findings are substantially in the language of the allegations of the several counts of the complaint. The conclusion of law from the findings is as follows: “As a conclusion of law from the foregoing facts the court finds that the plaintiff is entitled to joint and several judgment against defendants A. C. Biggerstaff, Chas. Correy and Chas. Corriea & Bros., in the sum of $1,068.71 and said plaintiff is also entitled to judgment joint and severally against defendants A. C. Biggerstaff and Chas. Corriea & Bros, in the further sum of Thirty Two Dollars and Sixty Two cents ($32.62), and for the costs of suit.”

The judgment follows the conclusions of law.

The evidence justified a decision only upon either one or the other of two opposing theories, to wit: 1. That the relation between Corriea and Biggerstaff and Corey was that of principal on the part of Corriea and agents on the part of the other two; or, 2. That the agreement between Corriea and A. 0. Biggerstaff was that the latter was to purchase the turkeys on his own account and ship the same to Corriea on consignment, or, in other words, were to be shipped by A.

The sole theory upon which the plaintiff’s case was tried below was that, in purchasing the turkeys, A.

On cross-examination, said Biggerstaff was asked if he had “rendered a bill” to Corriea for his services in buying the turkeys and he responded that, on account of the slump in the turkey market, he sent no bill to Corriea for his services in buying the turkeys; that, after the “slump,” he said to Corriea that “We will waive all rights to what we have got coming if you will settle up everything on account, ’ ’ but that Corriea made no reply to that proposition. Further referring to the fact that Corriea had paid him nothing for his services, Biggerstaff said: “I was waiting for the court to settle it. . The court would undoubtedly give me what was coming to me for my labor.” The witness further stated, on cross-examination, that Corriea authorized him in the summer of 1922-—either in July or August—to buy turkeys for him (Corriea.) The witness produced a letter from Corriea to him, dated August 16, 1922, in reply to a letter previously addressed to Corriea by witness. The letter from Corriea to witness stated, among other things, that he (Corriea) had been too busy “to get away,” but that he would endeavor “to get in your territory some time next week and we will make arrangements to buy the other turkeys you have in view and we will talk the whole proposition at that time.” There was some other testimony tending to show that A.

The plaintiff and her assignors testified that they did not know for whom Biggerstaff and Corey were buying turkeys at the time that they sold their turkeys to them. The plaintiff, though, it should be stated, did say that she “understood” that A. C. Biggerstaff and Corey were buying turkeys for Corriea, but that part of her testimony was stricken out.

It is not necessary to refer herein to the testimony presented by the appellant. It will suffice to say that the testimony so presented tended to show that the agreement between A. C. Biggerstaff and Corriea was that the former was to ship turkeys to the latter on consignment, and that Corriea was to sell the same for Biggerstaff for the usual commission for such services.

It will be noted, from the testimony of A. C. Biggerstaff, as hereinabove given, that the sole claim of the plaintiff at the trial, as it is her sole contention on this appeal, was that in purchasing and shipping the turkeys to Corriea said Biggerstaff acted as the agent of the latter. [2] This being so, and there being no evidence which supports the theory upon which the decision and the judgment appear to proceed, to wit: That the relation between the defendants in the transactions involved herein was either that of a partnership or a joint adventure, the findings and the judgment have nothing to support them and cannot, consequently, be upheld.

There are, however, certain considerations which, in view of a retrial of the issue as to the character of the relation between defendants, pertinently call for notice herein. If a retrial develops the same situation, evidentially, as is presented by this record, then the findings and judgment must be in accord with the one or the other of two different and antagonistic theories, to wit: 1. That A. C. Biggerstaff and Corey represented Corriea as agents in the buying of the turkeys; or 2. That the agreement was that Biggerstaff and Corey, having purchased the turkeys for themselves or on their own account, delivered them to Corriea on consignment, to be by him sold for the former. If the evidence, in the opinion of the trial court, sufficiently shows, to justify a finding to that effect, that in the carrying on of the transactions concerned here, the relation of principal, on the part of Corriea, and agents, on the part of A.

Counsel for the plaintiff cites certain California cases which he claims hold that both principal and agent are liable to third parties dealing with the agent within the scope of his authority as such, and that an action may be maintained and prosecuted to judgment against both. In one of the cases cited by counsel certain language, taken by itself, might be construed as supporting that view. (See Montgomery v. Dorn, 25 Cal. App. 666 , 670 [ 145 Pac. 148 ].) There is no dispute as to the proposition that, as the case just named states, both the principal and agent are liable under a contract executed by the agent for the former when acting within the scope of his authority as such agent; nor can it be disputed that a party may proceed against the principal and agent upon any contract so made. These propositions are clearly stated in Ewing v. Hayward, supra. But, as pointed out in that case, when, in the course of the trial, it appears that one of the defendants was the agent of the other in the

In the present case, while it is true, as we have said, that the contractual relation between the defendants, whatever may have been the nature thereof, may be shown under the complaint, still, as stated, that pleading appears to proceed upon the theory of the joint or joint and several liability of the defendants, and it may be assumed therefrom and also from the testimony of A. 0. Biggerstaff, that the plaintiff did not definitely know the true relation between the defendants in the buying of the turkeys until said Bigger-staff gave his testimony at the trial—at any rate,'not until after the complaint had been filed. But whether this was true or not true, or, even if the plaintiff assumed from the beginning that the relation between defendants was that of principal and agents, and proceeded in the presentation of her case according to that theory, it was still her duty, before the close of the case, to have made an election as to which of the defendants, Corriea, as principal, or A. C. Biggerstaff and Corey, as agents, she intended to fix liability upon.

But, assuming that, on another trial, the evidence is as it appears in this record, and that the court should find that A. C. Biggerstaff and Corey bought the turkeys for Corriea as the latter’s agent, the situation is that there is in existence now an unimpeachable judgment against the agents. The action being on contract, and the judgment reciting that the Biggerstaffs defaulted, and that their default was duly and regularly entered, the presumption is that said default, with its essential consequences, was entered upon the application of the plaintiff (Code Civ. Proc., sec. 585, subd. 1). The

Authorities supporting both views of the proposition as indicated in the text are cited in the footnotes. [4] It seems to our minds, however, that the stronger position is that taken by the eases holding that when a plaintiff prosecutes his action to judgment as against a party after he learns that such party was acting as an agent only of another in the transaction upon which the action is based, the course thus pursued by him constitutes an election as a matter of law, and that he must stand upon such election regardless of whether the judgment is or may be satisfied by the judgment debtor.

[5] It may incidentally be suggested that perhaps the above rule would not apply where a judgment had been taken by default before the plaintiff knew that the relation between the defendants was that of principal and agent. In such case, the default judgment might be set aside upon motion and a showing that the relation of principal and agent was not known to the plaintiff until after the default was taken.

In returning the case to the court below, however, it is well to suggest that if the question referred to be retried a specific finding should be made as to the relationship of the defendants. in the transactions. Obviously, if it be found

It may with no impropriety be suggested that if it be found that the relation between the defendants was that of principal and agent, then, upon the satisfaction of the judgment by the agents, there would thereupon accrue to the latter a right of action for indemnity or recoupment against Corriea. But be that as it may, for the reasons hereinabove given, the judgment must be reversed, in so far as the appellant is concerned, and, accordingly, it is so ordered, with directions to the trial court to be governed in another trial of the case by the views herein expressed.

Plummer, J., and Pinch, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 14, 1925, and the following opinion then rendered thereon:

The appellant petitions for a rehearing, claiming, as he claimed in his briefs, that the record supports no other course by this court than that of ordering the court below to enter judgment in his favor. We thought our position on the proposition was made sufficiently clear in the former opinion. However, the case presents rather an unique situation and that there may be no misapprehension as to our views regarding the points discussed in the original opinion and renewed by the appellant in his petition, we will take the pains to restate them here.

As pointed out in the opinion originally filed herein, the complaint is in the form of a common count as to all the several causes of action therein set forth as for “goods, wares and merchandise” sold and delivered to defendants. The averments of the complaint are, therefore, general in their nature, or not specific as to the contractual relation existing between the defendants in the transactions involving the purchase and sale of “goods,” etc. As also likewise shown, the findings are, substantially, in the language of the

The case of Ewing v. Hayward, 50 Cal. App. 708 [ 195 Pac. 970 ] (referred to in our original opinion), is no authority, as counsel seem to intimate in their petition, for the course which it is insisted should be pursued in the present case, to wit: Reversing the judgment as to appellant and directing the court below to enter judgment for and in his favor. In that case the finding was that the defendants were jointly liable. The evidence clearly showed, according to the opinion therein, that the defendants, in the transaction which was the subject of the action, sustained the relation of principal and agent. The opinion of Mr. Justice Thomas reversed the judgment as to one of the defendants, while the opinion of Mr. Presiding Justice Finlayson, concurred in by Mr. Justice Weller, merely stated: “The lower court, instead of requiring plaintiff to make an election at the close of the case to take judgment against the agent or the undisclosed principal, . . . entered judgment against both. This, I think, is ground for a reversal.” Thus it will be seen that the order of Mr. Justice Thomas reversing the judgment was concurred in by his associates but for reasons different from those for which the former conceived that the judgment should thus be nullified. The judgment of reversal contained no specific directions to the trial court as to the course it should follow. In other words, the trial court was not ordered to enter judgment for the defendant victorious on the appeal upon the findings as made. Indeed, the effect of the judgment in that case was merely to reverse the judgment below on the ground that there was no evidence which supported the finding that the defendants were jointly liable. The judgment of this court in this case amounts to the same thing, no more and no less, adding the suggestion, however, that on a retrial, if there be one, a specific finding as to the nature of the contractual relation between the defendants in the transactions concerned here be made.

■Counsel further state that the expense of a retrial should not be had, since it is manifest that the evidence introduced at another trial of the ease must necessarily be precisely the same evidence introduced at the trial with which we are here concerned. We cannot assume that such will be the case. Conceding, though, that the evidence received on a retrial of the action will be precisely the same as that received at the first trial, yet that consideration does not and cannot alter the situation. If the theory of principal and agents in the carrying out of the transactions is still maintained by plaintiff on a retrial, and the evidence is the same and the trial court so accepts it, then there would be left open to the court below no other course than to enter judgment for the appellant exonerating him from liability to the

The petition for a rehearing is denied.

Plummer, J'., and Pinch, P. J., concurred.