Kern County Brick & Contract Co. v. English

ALLEN, P. J.

This is an appeal from a judgment rendered in defendant’s favor and against plaintiff, and from an order denying a new trial.

The action was brought by plaintiff against defendant English t'o recover the price and value of certain brick and other building material alleged to have been sold and delivered by

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plaintiff to defendant between December, 1903, and June, 1904. Defendant denied the sale and delivery to him of said material, or that he ever agreed to pay therefor the price named or any sum.

Upon the trial of the action the court found the allegations of the complaint to be untrue and the allegations of the answer to be true. In addition to this, the court found that at the time the goods mentioned in the complaint were sold and delivered a partnership existed between the defendant and one Parnum, during the existence of which partnership said Parnum was the managing agent of the corporation plain-' tiff; that the materials set out in the complaint were furnished to such partnership through Parnum, the managing agent of plaintiff, and that, without the knowledge or consent of the defendant, Parnum had wrongfully caused the materials and supplies to be charged on the books of plaintiff to the defendant; that prior to the commencement of the action the partnership had paid to plaintiff the price and value of all goods received, other than the value of certain goods returned, and that there was no sum due from said partnership to plaintiff; and judgment was accordingly rendered in defendant’s favor for costs.

Upon this appeal the only question presented by the briefs relates to the sufficiency of the evidence to support the findings. The general finding that defendant English never individually purchased the materials mentioned in the complaint, received the same, nor promised to pay for the same, has ample support from the evidence. There is evidence in the record to the effect that, before the sale or delivery of any of the goods mentioned in the complaint, defendant English and Parnum engaged in the contracting business under an agreement through which Parnum was to furnish all the materials, and defendant English, who was a brick mason, was to receive six dollars a day for his labor, and that if any profits remained after the materials and labor were paid for the same should be equally divided. That Parnum, when he entered into this arrangement, was the general manager of plaintiff, and his arrangement and agreement with English was known to the president of plaintiff. It further appears that' after this agreement was entered into Parnum, as such general manager, shipped from the yards of plaintiff the ma-