McKee v. Cunningham (1906) · DecisionDepot

McKee v. Cunningham

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jan 18, 1906 No. Civ. No. 139.Published

Before: Allen, Smith

AI Brief

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Holding. The court held that a husband who authorized the purchase of goods for his wife is liable for the debt, and that a judgment against both spouses is not reversible even if the evidence primarily supports the liability of only one.

Issues

Whether a joint judgment against two defendants is reversible when the evidence supports the liability of only one defendant.
Whether a creditor may recover from an undisclosed principal after initially charging the agent for the goods.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that the judgment was also rendered against the wife, who is not here complaining in regard thereto, does not concern the appellant, and does not prejudice him.”

Synopsis

The facts are stated in the opinion of the court.

Opinion — Allen

ALLEN, J.

The suit was brought by the plaintiff as assignee of the Los Angeles Furniture Company upon the al

[686]

leged contract set out in the complaint, of date November 20, 1903; which is that on the day named, at the city of Los Angeles, “the said Los Angeles Furniture Company sold and delivered to the said defendants, and the said defendants had and received from the said Los Angeles Furniture Company, certain goods, wares and merchandise, for which the said defendants then and there agreed to pay the sum of $752.20”; which they have ever since refused to pay, etc. The answer denies the allegations of the complaint, and it is further pleaded, in separate defenses, in effect, among other things: That for many years the defendants have been living separate and apart by agreement; that the defendant appellant has never neglected to make adequate provision for the support of his wife; and that the debt sued upon is now secured by a mortgage, executed by Mrs. Cunningham since the beginning of the suit, upon the property alleged to have been sold to the defendants, and some other property, as her separate property, which was accepted and recorded by the plaintiff. The court finds the contract of sale sued upon as alleged in the complaint. But it is further found that the appellant defendant “authorized the purchase of said goods, wares and merchandise from the Los Angeles Furniture Company, and the delivery thereof to Mary E. Cunningham, his wife, . . . and agreed to pay therefor the sum of $752.90.”

As to the mortgage, the facts are found as alleged; but it is found that a portion of the mortgaged property, consisting of the goods in question, was community property, and the rest his separate property, and that the mortgage was made without the husband’s knowledge or consent and without consideration of any kind, and was therefore void. The other facts set up by the defendant are found as alleged. The conclusion of the court was that the plaintiff is entitled to judgment against the defendants, and each of them, for the sum alleged in the complaint, with interest, from which judgment the defendant M. Cunningham appeals, bringing up the evidence in a bill of exceptions.

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Concurrence — Smith

[689]

SMITH, J.

I concur in the judgment, though with some hesitation. The complaint alleges a sale by the plaintiff’s assignor “to the defendants,” and the finding and judgment is in accordance with this allegation. There is no evidence tending to support this allegation or finding. But the evidence of the daughters of the defendants tends to prove that the defendant appellant authorized them and their mother, or one of them, to purchase the furniture on his account; and though their testimony is not altogether satisfactory, yet it would perhaps have justified the court in finding that the furniture was purchased by the appellant defendant. Were there such a finding, the case would come within the application of the decision in

Dobbs

Purington,

136 Cal. 70, [68 Pac. 323]; but in the absence of such a finding, it is difficult to bring the case within that ruling. It is clear, however, that the joint sale to the defendants found by the court was also several; and the court finds that the appellant defendant “authorized the purchase of [the goods] and the delivery thereof” to Mrs. Cunningham, which would seem, in effect, to find that the purchase was on account of Cunningham. In support of the judgment, therefore, we may perhaps assume that there is a finding of a purchase by the appellant defendant, and disregard the finding as to Mrs. Cunningham’s participation in the sale as being an erroneous conclusion of law from the evidence and immaterial. Upon this construction of the findings, the case would come within the application of

Dobbs

Puring

ton, 136 Cal. 70, [58 Pac. 323].

But here another difficulty presents itself. There is, as I have said, absolutely no evidence tending to show a joint purchase. The apparent transaction, as shown by the evidence without contradiction, was a sale by the plaintiff’s assignor to Mrs. Cunningham personally. Nor is there any evidence in the record tending to show that the transaction was different, except that of the daughters. Assuming this to be true, the transaction presented by the evidence was that of a purchase by an agent of an undisclosed principal in her own name. Such being the case, according to what seems to be the preponderating weight of authority, the plaintiff’s assignor would have been put to its election, either to pursue the agent as the apparent principal or to pursue the real principal when disclosed.

(Thomas

Moody,

57 Cal. 215;

[690]

Puget Sound Lumber Co.

Krug,

89 Cal. 244, [26 Pac. 902]; 40 American Digest, col. 1276, sec. 499; Story on Agency, sec. 291; Anson on Contracts, 462; 1 Parsons on Contracts, 63, 549.) Here the evidence of the election upon the part of the plaintiff’s assignor, after a full knowledge of the transaction, to pursue Mrs. Cunningham as the purchaser, is clear and uncontradicted; and even after the commencement of the suit a chattel mortgage was taken by the plaintiff from Mrs. Cunningham on the furniture. The plaintiff, therefore, stands in the position of at once asserting an interest in the furniture by virtue of this mortgage, and of pursuing also the appellant defendant. This, under the rule cited, is not permissible, and assuming the rule to be as expressed, his election to pursue Mrs. Cunningham operated as a discharge of his claim, if any, to sue the appellant defendant. But I am not altogether satisfied of the propriety of the rule.

In this state of doubt, in support of the action of the court below, and upon the authority of

Dobbs

Purington,

I feel constrained to concur in the conclusion of the majority of the court.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 19, 1906.

AI Brief

Synopsis

Opinion — Allen

ALLEN, J.

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Concurrence — Smith

SMITH, J.

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