John Breuner Co. v. Allred

KOFORD, P. J.

Plaintiff obtained judgment upon a jury’s verdict for $811.75 for draperies and floor covering furnished and installed in a model home. It was one of a number of new homes which defendant had built upon land owned by himself for the purpose of sale. The points raised by defendant as appellant here are: First, the sufficiency of the evidence to show that C. W. Pearce, who made the agreement of purchase of the goods, was the agent of defendant either by authorization or by ratification, and second, claimed errors in giving instructions said not to have support in the evidence and in refusing requested instructions which also involves only a consideration of the evidence. The sufficiency in law of none of the instructions is argued. At the end of plaintiff’s case in chief defendant’s motion for a nonsuit and a motion to strike out the evidence were denied. The defendant thereupon proceeded with his evidence and now contends that the adverse judgment appealed from is not supported by the evidence.

There is sufficient substantial evidence to support the judgment. Disregarding denials and contradictory evidence offered in behalf of the defendant, there was evidence to support the following narrative: Pearce was a real estate salesman or broker. He had and occupied a desk in the office of appellant. That office contained a number of desks for appellant’s salesmen, one for his sales manager, Sibbald, and another for his bookkeeper. Pearce approached Hauer, an outside salesman of the respondent, stating that appellant wanted the respondent" to lend the necessary furniture to furnish the model home. After several meetings between these two men, at the model home, at appellant’s office and at respondent’s store, the agreement was made between them to lend the furniture and sell to appellant the draperies and floor coverings. Later Pearce and appellant’s sales manager Sibbald called at respondent’s store and talked with said Hauer and John Breuner, Jr., who consented to give a certain amount of advertisement to the model home. Sib

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bald and Pearce asked Breuner how much the draperies and floor coverings were to cost and he replied that it would be cost plus fifteen per cent because of the advertising in it, and that, because he could not use them after being cut for the home, he expected them to buy them. Later Pearce, in the presence of Hauer, met appellant. He told him about the advertising, that the draperies would cost about $650 and that carpet and linoleum would be extra. Appellant replied, “That is fine, go ahead,’’ and further told Pearce to keep on the job as he did not want to spend all that money for nothing. This was before the installation of the goods. Appellant ordered his painter to decorate the house in harmony with the colors planned by respondent’s salesman. After the model home was completely finished and furnished, the hostess placed in charge was instructed to quote one sale price of $13,500 for the house, lot, draperies, carpet and linoleum and not to quote any price for the home without the said furnishings nor for the furnishings without the home. Appellant himself personally instructed a salesman of respondent to quote the above price, stating that that included the drapes and floor covering. There was testimony that the price of the house before it was furnished was $12,500> but none is pointed out regarding what was to be done with the balance of the extra $1,000 after paying the $811.75 for the costs of the drapes and floor covering. On the last day of the period for which respondent had agreed to lend the furniture, a purchaser for the home was secured, but only for the home and not for the drapes and floor coverings, price $12,500. When appellant was personally presented with a bill for the goods he stated that he did not intend to pay the bill because the said respondent had not lived up to its promises to give certain newspaper advertisement and so he would not live up to his promise. He did not at that time deny having bought the goods místate that he was not liable therefor. At the trial appellant as a witness admitted having authorized Pearce to have respondent install furniture and furnishings in the house, but denied knowing that it would cost him anything.