Mountain Copper Co. v. Welcome Growers Gin Co.

[255]

STONE, J.

Plaintiff-appellant filed an action against defendant-respondent gin company for the sale price of fertilizer alleged to have been furnished defendant and for which defendant either expressly or impliedly agreed to pay. The ease was tried to the court without a jury and from a judgment for defendant, plaintiff appeals.

Defendant gin company as a service to its growers advanced certain expenses necessary to produce a cotton crop. The items were estimated, budgeted, and the total secured by a lien on the crop to be produced. The items were advanced as needed, and fertilizer was a budgeted grower expense. During 1956 and 1957 one W. E. Carr, Jr., was gin manager for defendant. At the same time he conducted his own fertilizer business from the gin office and, acting in this dual capacity, sold fertilizer to growers. Carr had the fertilizer shipped to the gin, and from there it was hauled to the ranches of the individual growers. During 1956 the fertilizer was paid for out of each farmer’s budget account. However, all of the 1957 accounts were not paid, and plaintiff brought this action against defendant to recover the unpaid balance. Plaintiff predicates its right to recover the sale price of the fertilizer from defendant Gin upon two theories, first, that Carr was acting as defendant’s agent in the operation of the fertilizer business and, second, that defendant, by permitting Carr to act as its general manager and at the same time operate a fertilizer business from the gin office, misled plaintiff into believing that the fertilizer was ordered by Carr for defendant.

If, as plaintiff contends, it had no notice that Carr was operating his own business while acting as agent for defendant, thereby inducing plaintiff to rely on defendant’s credit in shipping the fertilizer, defendant would then be estopped from denying that Carr was ostensibly its agent.

(Safeway Stores, Ine.

v.

King Lumber Co.,

45 Cal.App.2d 17 [113 P.2d 483].) The record reflects, however, that during the period covered by the business transactions involved herein, plaintiff was represented by one De Gregory as a sales representative in the area. Carr testified that he explained to De Gregory that he was general manager of defendant Gin, and at the same time acting as an independent fertilizer dealer. Plaintiff attacks Carr’s credibility, but the trial court is the judge of the credibility of witnesses. Unless testimony is inherently improbable (and Carr’s was not), a