Rieder v. Hogan Company

WORKS, J.

This is an action for the recovery of the purchase price paid by plaintiff for five automobile leases or sales contracts. Plaintiff had judgment for the amount from defendant The Hogan Company and that defendant appeals.

The contracts were purchased for respondent by the firm of Porter & Brown, who were his agents in the deal, the negotiations leading up to the sale having been conducted by Porter, a member of the firm. Porter made the purchase from defendant Sears. In fastening liability upon appellant the trial court found that Sears, in making the sale, acted as the ostensible agent of appellant. The result of the appeal depends on the question whether this finding is supported by the evidence, for appellant contends that it is not. At the time of the sale of the contracts Sears had been for some time the manager of an insurance department which was operated by appellant, and Porter knew that he was employed by appellant in that capacity. We must assume, from the very designation given to this position, that' Sears occupied a somewhat important place with appellant, and Porter was justified in so regarding him. Laying aside, for the moment, the question of his authority to make sale of the five contracts, appellant held Sears out to the world as a person worthy of trust, for appellant itself had placed him and had retained him in a position of trust. That being so, no more than slight additional evidence would be necessary to justify Porter in assuming that Sears had authority to sell the contracts. What additional evidence was there upon which Porter might have relied, as entitling him to assume that Sears had actual authority to sell ? At the same time, what evidence is there to which we may look for a support f@r the finding that Sears was the ostensible agent of appellant in making the sale? Undoubtedly, evidence leading Porter justly to assume the existence in Sears of an actual au

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thority will at the same time warrant our upholding the finding that he was clothed with an ostensible authority (Civ. Code, see. 2300). Sears, after having testified concerning the sale of the five contracts to Porter, went on to say: “I had sold other contracts to Porter, acting as manager of the insurance department of The Hogan Company.” This statement, especially when taken in connection with Porter’s knowledge that Sears held an important position of trust with appellant, appears to us to afford a sufficient support for the finding that there was an ostensible agency. It was evidence to the trial court that appellant had authorized, or at least had permitted, Sears to deal with Porter in and about matters which were of the same character with the transaction out of which this litigation arose. Appellant asserts, however, that this evidence is not “binding” upon it for the reason that it “appears from the evidence, and the findings are to the effect, that Sears purchased and sold many contracts without the knowledge of appellant.” This language is followed by no reference to any part of the evidence, but attention is directed to one of the findings. It is true that the trial court did find as stated, hut it is also true that immediately preceding that finding it was found that Sears had been employed by appellant for about three years at the time of the sale of the five contracts, that during most of that time he had been the manager of appellant’s insurance department, and that while acting in that capacity and