MEYER v. KIRKWOOD (1934)

These two actions were tried together and have been consolidated on this appeal. The respective plaintiffs furnished the labor and material for certain improvements which were made on a tract of land in Riverside county. Each plaintiff filed a notice of claim of mechanic's lien in which it was alleged that all of said work and materials were furnished to and at the request of M. M. Kirkwood, through her agent, Jack F. White. A complaint to foreclose the lien and for personal judgment was then filed by each plaintiff, in which it was alleged that M. M. Kirkwood, through her agent, Jack F. White, employed the plaintiff to do the work described, and that the said M. M. Kirkwood, through her said agent, Jack F. White, agreed to pay a named amount for the improvement in question, a copy of the notice of claim of lien being attached to the complaint. Amended complaints were filed containing the same allegations. Subsequently, a second amended complaint was filed in each case in which it was alleged that “defendants M. M. Kirkwood and John F. White, also known as Jack F. White, employed plaintiff as original contractor,” and that all of the materials and labor used were furnished “to and at the request of said defendants M. M. Kirkwood and John F. White.” Copies of the respective notices of claim of lien were also attached to the second amended complaints.

At the trial of the action no effort was made to establish or foreclose the liens, a nonsuit was granted in favor of the owners of the land, and the action was tried on the plaintiffs' theory that the defendant White, in ordering the work done, had acted both for himself and as agent for the defendant Kirkwood, and that the two were jointly liable. The court found, with respect to each case, that the defendant Kirkwood and the defendant White employed the plaintiff to do the work, and that the defendants Kirkwood and White agreed to pay the plaintiff a certain amount therefor. No findings were made as to agency or as to any other facts which might impose liability upon either of the defendants. Judgment was entered against both defendants in each case, from which judgments these appeals were taken.

With respect to the general situation out of which these cases arose, it appears that the appellant Kirkwood signed a written proposition to exchange certain property owned by her for the real property on which the improvements here in question were made. This instrument was delivered to a real estate broker by the appellant White, who was a son-in-law of Mrs. Kirkwood. White later signed a written escrow agreement relating to the proposed exchange, signing the same “M. M. Kirkwood by J. White.” While the matter was in escrow the real estate broker introduced White to these respondents as the agent for Mrs. Kirkwood, who was purchasing this property. White met the respondents on the land, and some agreement was made between them, as a result of which the respondents performed the work. However, the escrow referred to was never closed, Mrs. Kirkwood never became the owner of the property, and this action followed.

The first point to be considered is whether the findings, to the effect that Mrs. Kirkwood ordered the work done and agreed to pay for the same, are sustained by the evidence. The respondents testified that they had never seen nor talked with Mrs. Kirkwood and she is liable, if at all, on the theory that White was acting as her agent in ordering the improvements made. The respondents rely upon the following circumstances as showing that White was the authorized agent of Mrs. Kirkwood for this purpose: That White signed the escrow instructions as Mrs. Kirkwood's agent; that he signed a criminal complaint charging two other persons with stealing certain personal property from this land, alleging that the stolen property was owned by Mrs. Kirkwood; that he orally directed the respondents to do this work telling them, in response to their inquiry, that Mrs. Kirkwood was to be billed for the work, and that the account was to be carried in her name; that one of the respondents wrote to White saying he was ready for some alfalfa seed, and White wrote back saying that he had wired the Germain Seed & Plant Company to send him the seed; that on taking the matter up with the Germain Seed & Plant Company this respondent was told that they had received an order for the seed, but that the same would not be shipped until it was paid for; that a few days later the seed was shipped to and received by this respondent; that a sales tag in possession of the Germain Seed & Plant Company showed that the seed was ordered in the name of “Mr.” M. M. Kirkwood on March 24, 1930, and that the seed had been paid for on April 1, 1930; that White personally signed and gave to the real estate agent a statement giving a selling price for this land, enumerating certain items including the two claims involved herein; that after the work was completed White told one of the respondents that he would send him a check and told the other respondent that he would have to wait a few days for his money; and that Mrs. Kirkwood personally signed a written notice of rescission in connection with the escrow above referred to.

Assuming that White's statement that the work was to be charged to Mrs. Kirkwood is a declaration that he was her agent in this transaction, under well-established rules the same cannot be considered for the purpose of establishing such agency unless a prima facie showing of authority appears from the other evidence. Union Const. Co. v. Western Union Tel. Co., 163 Cal. 298, 125 P. 242. While the respondents contend that such a prima facie case appears from the other circumstances referred to, we are unable to see how this contention can be sustained. If it sufficiently appears that White was Mrs. Kirkwood's agent in so far as the attempted purchase of this real estate is concerned, none of the matters in connection with that transaction go any further than to show his agency for that purpose. It was necessary for the respondents to also show that White was her agent in the matter of ordering these improvements. Mrs. Kirkwood testified that she had never heard of the improvements and knew nothing about them until she was served with the complaints in these actions. While the respondents testified that White told them that “we will furnish the seed from the Germain Seed Company” and that “we expect to develop this ranch into an alfalfa ranch,” he had disclosed to them that he was claiming to act for Mrs. Kirkwood, and they made no attempt to verify his claim of authority to act for her. Great reliance is placed upon the fact that the sales slip for the seed was in the name of “Mr.” M. M. Kirkwood. There is no evidence as to who ordered the seed other than the fact that White wrote to one of the respondents saying that he had wired the seed company to send the seed. It does not appear who paid for it, there is absolutely no evidence to the effect that Mrs. Kirkwood either purchased the seed or knew anything about it, and she herself testified to the contrary. No knowledge of this transaction or of the fact that White was pretending to act therein for her was brought home to Mrs. Kirkwood in any manner whatever, so far as disclosed by the evidence. If respondents' contention is correct, any person who intrusts a signed proposal to exchange properties to another for delivery to a broker is liable for any improvements that may be ordered by such other person for the new property sought to be acquired, whether or not the new property is actually acquired, and regardless of the fact that such first person knew nothing about any such improvements. The mere statement of the proposition is sufficient refutation thereof. In so far as appellant Kirkwood is concerned, there is an entire lack of any evidence to support either the allegations of the complaint or the findings.

The next question is whether the evidence sustains the findings that White personally ordered the work and agreed to pay for it. Although the second amended complaints disclose a complete change in respondents' theory in this respect, and although an attempt was therein made to charge both appellants as principals in this transaction, it was necessary for the respondents to sustain such allegations by proof. The respondents argue that White's statements that “we expect to develop this ranch into an alfalfa ranch,” “we will furnish the seed from the Germain Seed Company,” and “we will take care of you as soon as I get back,” evidence an intention on his part to “superadd his personal liability to that of his principal, Kirkwood.” Under the circumstances, these statements indicate no more than that White claimed to be acting for Mrs. Kirkwood, and it is thoroughly established that the respondents dealt with him only as the agent of Mrs. Kirkwood, and that they did not understand that he was speaking for himself or intend to contract with him individually. One of the respondents testified that when the work was ordered, in the presence of the other respondent, he asked White if the work was to be billed to him, and that White replied, “No, to Mrs. Kirkwood.” He further testified directly that all of the work was furnished at the request of M. M. Kirkwood through her agent Jack F. White, and as follows:

“Q. Were any of the materials,–or was any of the work furnished for the account of any one other than M. M. Kirkwood by you? A. No.

“Q. In other words, all the work you did and materials you furnished were for Mrs. Kirkwood. Is that right? A. That is right.”

It was then stipulated that the other respondent would testify to the same effect. Under these circumstances, if White was liable at all, it would be, not as one of the contracting parties, but because he assumed to act as an agent for Mrs. Kirkwood without having the authority to so act. Assuming that under some circumstances White could be held as a principal in this matter under section 2343 of the Civil Code, such a result could not obtain in the absence of evidence showing that he had not in good faith believed that he had the authority to act for her. Nichols G. & M. Co. v. Jersey Farm D. Co., 134 Cal. App. 126, 24 P.(2d) 925. There are no pleadings, evidence, or findings to that effect here. The case was tried upon another theory entirely, and it would require appropriate pleadings, evidence, and findings to impose liability upon White for a breach of warranty as to his authority to act for Mrs. Kirkwood.

In our opinion, neither the findings nor the evidence support the judgment entered in either of the cases as against either of the appellants.

For the reasons given, each of the judgments appealed from is reversed.

BARNARD, Presiding Justice.

We concur: MARKS, J.; JENNINGS, J.