New York Indemnity Co. v. Western Loan & Building Co.

RANKIN, J., pro tem. By this action plaintiff seeks a judgment for damages predicated upon fraud and deceit. The complaint, after averments of the corporate existence of the parties, alleges:

“That the defendant, Earl Lund, is and was, at and during all the times herein mentioned, the agent, servant and representative of the defendant, Western Loan and Building Company, a corporation, at its office in the City of Los An-geles in said State of California,” and alleges acts and representations of the defendant, “By and through the defendant, Earl Lund, while acting as the agent, servant and representative of the defendant, Western Loan & Building- Company.”

The trial court found: “It is not true that the defendant, Earl Lund, on or about the 21st day of December, 1926, or at any other time in plaintiff’s complaint alleged, was the agent and/or servant and/or representative of the defendant, Western Loan & Building Company, a corporation,” and further found in favor of defendant upon all material issues made in the pleadings.

While appellant’s statement of the questions presented by its appeal is ambiguous, it is apparent that the sole question involved is whether or not the evidence supports the findings.

Appellant’s contention is that the uncontradicted evidence establishes the agency of Earl Lund as alleged. We are unable to assent to this claim.'

The plaintiff is a corporation doing a general surety business in the state of California. The witness, Paul Doring, was manager of the surety department conducted by plaintiff. His duties were the underwriting of surety bonds for [221]all purposes and be had authority to execute bonds for the plaintiff. The defendant is a Utah corporation engaged in the building and loan business with its main office in Salt Lake City, Utah. On the dates mentioned in the complaint it maintained a branch office at 505 West Fifth Street in the city of Los Angeles. S. H. Lund was the agent of the company in charge of that office. His authority as agent was evidenced each six months by a certificate issued by the defendant, granting him authority to take applications for its stock and collect the installments indicated in the applications, which certificate contains the limitations as follows:

“No authority is granted by this commission to any agent to promise or contract to make loans for any amount at any time or to bind this company to pay any debt contracted by the agent or waive loans for any amount or at any time or to bind this company to pay any debts contracted by the agent or waive any of the conditions contained in the printed literature of this company. All contracts incurring the expenditure or refunding of money, granting or contracting for loans, must be arranged through the home office. Local agents may be appointed subject to the approval of the home office. Good for six months only. ”