Taetle v. Livezey Lumber Co.

Prescott, J., delivered the opinion of the Court. The appellee, a lumber dealer, obtained a judgment against the appellant for work and materials furnished by the appellee upon a garage owned by the appellant and others, which was leased to a tenant. The work and materials consisted of new overhead garage doors and repairs to other doors upon the leased premises. There was testimony to the effect that when the weather became cold in November, 1956, Mr. Baker, the tenant, told the appellant, one of the landlords, that “something would have to be done about the doors.” As a result of this conversation, Baker was requested by Taetle, the appellant, to find someone who would make the repairs and do whatever was necessary, and to bring the prices back to Taetle for approval.

Baker contacted the Livezey ²⁷² Lumber Company, the appellee, through its owner, G. Kessler Livezey, Jr. He obtained prices from Livezey for the new doors needed and took them to Taetle’s office. Taetle was not in, but a Mr. Frank, a co-owner of the garage and a partner of Taetle, was, and he told Baker that he would talk the matter over with Taetle and let Baker know. After several days, Baker returned to Taetle’s office and, again, he was not there, but Frank was, and he told Baker that it would be “okay” for the middle priced doors. Baker then returned to the garage and called Livezey and asked him to order and install the middle priced doors.

In addition, Baker ordered certain repair work.done on other doors in the garage. He testified that this repair work was discussed with both Taetle and Frank, and, while he did not give the price therefor to either Taetle or Frank, he was authorized to have it done by Frank. There was testimony that the work was done and the materials furnished, and that a bill was submitted for their payment. There was also evidence that Taetle had visited the garage on at least one occasion during the progress of the repairs.

There was, of course, additional testimony offered, but it is unnecessary to relate it here. No question is raised as to Taetle’s partners not being parties. Taetle testified flatly that he had not, nor had anyone in his behalf, authorized Baker to order anything from the Livezey Lumber Company. Frank did not testify.

The trial court, sitting without a jury, concluded as a matter of fact that Taetle through his partner, Frank, had constituted Baker as his agent to have the repairs made at Taetle’s expense, and entered judgment against the appellant in favor of the appellee. I The appellant first contends that the trial court was in error because the contract for the work and materials was one between the appellee and the tenant, and created no responsibility on the part of the appellant. He argues that, as a general matter, a tenant is not the agent of his landlord either in the matter of making repairs, or in any other respect; and, since the lease in this case did not impose any obligation upon the landlord to