Acme Gravel Co. v. Bryant

LUCAS, J.,

pro tem.

This action was brought by respondent against appellant to recover the sum of $2,153.88 for building materials furnished appellant by respondent. In his answer appellant admitted the purchase of said building materials but alleged that said materials were delivered to him to be used in the construction of a certain apartment hotel in Oakland under an oral understanding and agreement that seventy-five per cent of the sale price of said materials should be paid for in cash and that the balance should be paid for in the preferred capital stock of the building .corporation engaged in erecting said apartment hotel. At the trial it was admitted that if appellant’s contention was correct, respondent was entitled to $553.88 in cash and $1600 worth of said stock; that this amount of cash and stock had been delivered to respondent prior to the commencement of the action, but that respondent had refused to accept the same.

The trial court found against the existence of the agreement relied upon by appellant. A motion for a new trial was made and denied, and appeal is taken from the judgment.

The sole question for this court to decide is whether or not the evidence is sufficient to justify the findings of the

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trial court and to justify its action in denying appellant’s motion for a new trial.

Appellant produced but one witness, namely, Robert F. Morris, engineer and second in charge for appellant, who testified that one Nugent, salesman for respondent, solicited from him an order for the building materials in question and was told that to secure the order it would be necessary for respondent to take twenty-five per cent of the value of the materials in stock; that Nugent advised he would have to take the matter up with his company, and that three or four days later he returned and stated in effect that the stock would be accepted as part payment. Thereupon deliveries began.

In answer to this, E. B. Kendall, vice-president of the respondent corporation, testified that he had never heard of the claim that part of the materials were to be paid for in corporate stock until after the completion of the building in which they were used; that no one on behalf of respondent had ever been authorized to accept other than cash in payment of materials; that it was the general order of the respondent corporation that any proposal for the taking of stocks or securities or anything out of the usual line of business must be taken up with the general office; that all employees were instructed not to agree to take stock in part payment for materials; that the respondent corporation had never engaged in any transaction with anyone for the acceptance of stock as such part payment, and that Nugent was only a salesman, and had no authority whatsoever as an officer of the company.