Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-09
OREGON SUPREME
COURT DECISIONS
Continued from Page 81

of the terms of the contract, had
paid to Gostlow sums in excess of
the amounts therein provided
The action was tried by the circuit
court without jury and the findings
and judgment being in favor of plain
tiff, defendant company appeals.
Mcbride, ]. Counsel for defendant
concede that if KrulIs letters, con-
senting to a settlement by plaintiff
with Gostlow, are binding upon the
Guarantee company, defendants are
liable in this action. This, viewed
from defendants standpoint, reduces
the controversy to a single PROPOSE
ton and we will so treat it,
In considering the findings of the
circuit court on that subject, it will
be borne in mind that, by Sec. 159 l..
o. L., the findings of the court in an
action tried by it without a jury, are
deemed a verdict, and, therefore, if
there is any evidence to sustain such
findings they are conclusive upon ap-
peal: Fulton v. Earhart, Or. So;
Hicklin v McClear, IS Or 1876; Court
ney v. Bridal Veil Box Factory, So Or.
21O, 214.
1t is Hornbook law that an agency
cannot be proved by the declara-
tlons of the agent and therefore the
fact that Krull affixed the name of
the company to the letters is not any
evidence of his autority to do so. We
are of the opinion, however, that
there is in this record evidence per-
haps not Of the most convincing char
acter, but reasonably strong, which
tends to show that Krull had author
ity to write the letters in question or
at least that defendant had so held
him out to plaintiff and the public,
which amounts to the same thing.
The question is not so much what
actual authority Krull possessed as
what authority he apparently pos
sessed, and persons dealing with the
corporation were not bound to search
its records to ascertain what limita-
tions these placed upon his power to
act, If it permitted him to hold him
self out as an agent in charge of it's
bonding business.
The testimony shows that he was
arranging desk in the general office
of the company and that when plain
tiff went there and inquired of an en-
ploye for the manager of the bond
ing department, he was directed to
Krull's desk; and that Krull was in
the office of the company and, assum-
ing to act for it, wrote the letter in
question upon one of the company's
letter-heads, Kroner, the architect,
testifies that he had occasion several
times to look after bonding business
with the company and Krull always
attended to the business. This wit
ness stated that the company's office
was one large room with several
desks and tables and usually two or
three persons occupying the desks;
that there were no signs designating
any particular person or department
of the business, and said that on
another occasion he went with a con-
tractor and inquired of one of the oc-
cupants for the manager of the bond
ing department and was referred to
Mr. Krull, who transacted the bust
ness. j, D. Maclcie, representing one
of the lien claimants, testified that he
called at the office and told Mr.. Hurl-
butt, general manager of the COM
pany, that he wanted to speak to the
man who had charge of the bonding
department and was thereupon intro
duced to Krull who told him he would
be protected. Subsequently he
called again and asked Hurlbutt to
fulfil this promise and Hurlbutt told
him he should have asked for Krull's
credentials.
We are of the opinion that these
circumstances are evidence that Krull
was at least an ostensible agent of
the defendant company andconstitute
some evidence of actul agency; the
value and effect of it was for the low
er court. Defendant company admits
that Krull was an agent for the pur-
pose of receiving application for
bonds, but this testimony indicates
that his recognized power extended
beyond this. He is not in the posi-
tiOn of n solicitor for insurance who