Doolittle v. Savage Tire Co.

CONREY, P. J.

The judgment awarded to the plaintiff the sum of one thousand dollars as compensation for the use of an automobile pursuant to an alleged agreement between plaintiff and defendant. The defendant appeals from the judgment.

The principal grounds upon which appellant claims a reversal are that the evidence is insufficient to sustain the following findings: (1) That the plaintiff used his automobile in the business of the defendant pursuant to the agreement sued on, from on or about the first day of July, 1913, to and including the thirty-first day of August, 1914; (2) That the reasonable value of the use of the automobile was the sum of one thousand dollars.

[477]

The plaintiff was a salesman employed in selling tires for the defendant, and was the owner of an automobile. At a date not exactly established, but which was between the first and middle of August, 1913, the sales manager of the defendant made an oral agreement in its behalf with the plaintiff which, in substance, was that the plaintiff should use his automobile in connection with his work as a salesman, and that the defendant would pay the reasonable value of such use. The plaintiff did use his automobile exclusively in the business of the defendant from that time until about the end of August, 1914. There is evidence tending to establish the fact that this arrangement between the sales manager and the plaintiff was made known to and was approved by the president and general manager of the defendant. The evidence further shows that the reasonable value of the use of the automobile, if plaintiff paid for the gasoline used by him, was one hundred dollars per month; if the defendant paid for the gasoline, it was at least $75 per month. The plaintiff did pay for his own gasoline until March 1, 1914. Thereafter the gasoline expense was paid by the defendant.

Fairly construed, the brief for appellant concedes that the plaintiff is entitled to compensation under the contract sued on for the time from the middle of August, 1913, until March 1, 1914. This would justify the judgment at least to the extent of $650. Appellant contends, however, that the contract was terminated on March 1, 1914, and therefore that the recovery cannot include compensation for the use of the automobile after that date.