Sims v. Frew

CONREY, P. J.

In this action the plaintiff recovered judgment for sums found to be due on accounts for merchandise sold and delivered to the defendant by plaintiff’s assignors. From the judgment and an order denying defendant’s motion for a new trial the defendant appeals.

There is no controversy over the correctness of the charges or the amount of the judgment. The goods were furnished on the order of one Dick Ferris and were charged to him, and the defendant’s contention is that he occupied no relation to Ferris that would make him responsible for this indebtedness.

[726]

On the sixth day of December, 1911, the defendant Will L. Frew, as party of the.first part, and Dick Ferris, as party of the second part, entered into a written contract concerning a proposed aeronautical exhibition to be held on Dominguez field in Dos Angeles County during the following January. Frew was in possession of said premises as lessee thereof and desired to obtain the services of Ferris “to promote said meet and to act as and to bear the title of general manager, to secure publicity for said meet through the daily papers and. magazines, to arrange for the services of competent press agents and to devote his entire time and energy toward the devising and carrying out of a plan for producing an important, attractive and entertaining exhibition, and to aid in causing the public to patronize the same.” For this purpose the contract was written wherein Frew agreed to furnish for said meet the Dominguez field with certain equipment and to police the grounds and furnish the necessary ticket sellers, ushers and other attaches necessary to the enterprise. It was further agreed that “all other expenses incurred in conducting said meet, not to exceed the sum of ten thousand dollars, shall be advanced by said first party, and said first party shall be reimbursed by retaining from the first proceeds of the sale of admissions to said meet of every kind and nature, a sufficient amount to pay the same, not to exceed, however, the sum of $10,000.” It was then provided that in the disbursement of the total income the first ten thousand dollars should be subject to “the expenses incurred by said party of the first part as above set forth,” and the balance was to be paid out in percentages to various persons or classes of persons. This included ten per cent to Ferris “for his services as hereinafter set forth in this agreement,” and the last remaining nineteen per cent thereof, together with all concessions of every kind and nature, was to be retained by Frew in compensation for the use of Dominguez field and for his personal services in conducting the exhibition. It was further stipulated that “said first party shall not be responsible in any way for any obligations, bills or contracts incurred or entered into by said second party, unless the same have been sanctioned and approved by said first party in writing.”