Frazier v. Southern Counties Gas Co.

HOUSER, J.

This is an appeal from a judgment entered against the defendant in the sum of $310.35 on account of certain gaspipe alleged to have been sold by plaintiff to the defendant and for which m> payment was made,

Appellant urges as a reason for the reversal of the judgment that the evidence was insufficient to support the finding of fact that the contract of sale was made as alleged in the complaint. An examination, however, of the record discloses the fact that there was substantial evidence to justify such conclusion on the part of the judge of the trial court, and the rule is so well settled as to require no citation of authority that in such circumstances the finding of the trial court cannot be disturbed on appeal.

The contract in question was entered into between plaintiff and a district superintendent of the defendant, and it is claimed that there was no authority on the part of such agent to conclude the contract. The evidence shows that it was a part of the recognized duty of the district superintendent to attend to the very business which was the foundation for the purchase of the pipe, and that in another transaction, which was a part of, or at least closely connected with, the particular transaction which brought about the purchase of the pipe which is the subject of this controversy, the same agent had acted with the plaintiff in conjunction with other interested parties in a similar way, apparently with the knowledge, consent and approval of the defendant. In this connection, there was evidence to the effect that plaintiff had originally negotiated with the superior officer of the agent and had made with such superior officer a tentative contract entirely different from the one alleged in the complaint; but the finding of the court, by which this court is bound, and which finding was supported by other substantial evidence, is to the effect that the final contract was entered into between plaintiff and the district superintendent of the defendant, and that such agent liad at least implied authority in the premises. It

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must therefore follow that the defendant’s specification to the effect that the agent was acting without authority in the premises must fail.

It is also suggested that because the gaspipe was second-hand, and for the reason that certain neighbors of plaintiff who were to receive the benefit of the pipe being laid in front of their several properties in order that they might make gas connections therewith, were to contribute to the cost of the pipe on the assumption that it was new pipe, and that because of such deceit plaintiff was to make a secret profit on the transaction—the contract would be unenforceable. It is true that there was some evidence introduced on the trial which might justify such a conclusion. On the other hand, there was evidence from which the court would have been warranted in finding that plaintiff’s conduct was blameless and entirely free from either legal or moral criticism. No fraud was pleaded by the defendant as against plaintiff; neither was there any finding by the court on the subject. Such being the case, the presumption must be that the suggestion of plaintiff’s fraud in the matter was not favorably received by the judge of the trial court. Besides, no such issue having been presented by the pleadings, there was no duty resting on the court to make a finding in connection therewith.