Cooke v. Newmark Grain Co.

CONREY, P. J.

In this action the plaintiff has recovered a judgment in damages for the breach of an alleged contract for the purchase of a quantity of barley. The defendant appeals from the judgment.

The defendant is sued as an undisclosed principal in relation to a contract whereby the alleged agents in their own name made a written agreement to buy the barley. Appellant contends that the evidence is insufficient to sustain the finding that the contract was made by the defendant in

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this, that the evidence is insufficient to prove that the alleged agents were authorized to make the contract as agents for or on behalf of the defendant. An agreement for the sale of personal property for a price of two hundred dollars or more is invalid unless the agreement, or s'ome note or memorandum thereof, be in writing and subscribed by the party to be charged or his agent, unless the buyer accepts or receives part of such goods and chattels or pays at the time some part of the purchase money. (Civ. Code, secs. 1624, 1739.) “An oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing.” (Civ. Code, sec. 2309.) The contract sued on in this ease involved a consideration of more than five thousand dollars. The defendant has not accepted or received any of the property alleged to have been sold to it, nor was any part of the purchase price paid. There is no ■ evidence of any written authority given to the alleged agents to make the contract in question.

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We may assume, without so deciding, that the evidence would be sufficient to sustain the finding if an oral authorization of the agency were legally sufficient for the purpose; although it may be noted that the fact of such oral authorization is warmly disputed by the defendant, which wholly disclaims that it authorized the contract- in any manner whatever.

On behalf of respondent it is suggested that the defendant ratified the agency authorization by giving shipping instructions, through an agent named Wolz, for the plaintiff’s grain. We have been unable to discover in the record any evidence of such instructions given by Mr. Wolz, other than a telephone message to which Hayward testified, or any evidence that Wolz had authority to give ■such instructions on behalf of the defendant.