482 P.2d 426 (Colo.App. Div. 1 1971) Ervin L. HANCOCK, Plaintiff in Error, v. MINNEAPOLIS-MOLINE, INC., and Motec, Inc., Defendants in Error. Nos. 70--650, 24322. Court of Appeals of Colorado, First Division March 9, 1971
March 9, 1971.
This case has been marked 'not for publication' by the court.
Schmidt & Schmidt, Howard M. Schmidt, Springfield, for plaintiff in error.
Johnson & McLachlan, Harlan Johnson, Lamar, for defendants in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is an action for specific performance of a contract or in the alternative for rescission plus damages. The parties appear here in the same order as in the trial court and will be referred to by name or by their trial court designation.
The record indicates that Willard Klipfel owned and operated the Springfield Implement Company of Springfield, Colorado. Under this company name, Klipfel was the dealer for Minneapolis-Moline, Inc., New Holland, Drause Equipment and Chrysler and Dodge automobiles. He handled new and used equipment as well as the parts and supplies of these various manufacturers and also maintained a repair department. Klipfel and his company, hereafter referred to as the dealer, are not parties to this action. However, the issue of this case is whether the dealer was the agent of Minneapolis-Moline, Inc.
The plaintiff, Ervin L. Hancock, entered into a written contract with the dealer for the purchase of a new Minneapolis-Moline tractor to be delivered in 30 to 90 days. The total sale price was $9,065. Hancock paid the dealer $2,865 at the time of the order and shortly thereafter delivered to the dealer his used Minneapolis-Moline tractor for an agreed trade-in allowance of $3,400. The balance of $2,800 was to be paid in cash upon delivery of the new tractor. The dealer deposited the down payment in his own account and took possession of the trade-in tractor, which the dealer was to sell for his own account.
Soon thereafter, the dealer went out of business due to financial difficulties and the dealer made no delivery of the new tractor. Minneapolis-Moline, Inc. stepped in and took possession of all the Minneapolis-Moline equipment, new and used, including Hancock's trade-in tractor. Minneapolis-Moline, Inc. had financed the dealer on all of Minneapolis-Moline's products and also had filed a financing statement from the dealer as provided for under the Uniform Commercial Code.
Plaintiff initiated this action against Minneapolis-Moline, Inc. on the contract which plaintiff had negotiated with the dealer. Plaintiff asked for delivery of the new tractor or in the alternative for the return of the down payment and the trade-in tractor plus damages for loss of use of a tractor. Plaintiff alleged that the dealer was the agent of Minneapolis-Moline, Inc. and that Minneapolis-Moline, Inc., as principal, was bound to perform under the terms of the contract.
At the conclusion of plaintiff's evidence in the trial to the court, the defendant's motion to dismiss was granted on the ground that plaintiff had failed to prove an agency-principal relationship between the dealer and Minneapolis-Moline, Inc.
Plaintiff contends that the court erred in ruling, 'It is the duty of an individual dealing with an agent to determine for himself the authority of the agent.'
This statement by the court is not without authority. See Johnson v. Lennox, 55 Colo. 125, 133 P. 744. We find no merit to this alleged error. The statement of the court relates to the scope of an agency which is not an issue in this appeal. Furthermore, the trial court did not make the statement quoted as a ruling nor as the grounds for the judgment in this case. The statement was made by the court in the course of a discussion with the attorneys about the general laws of agency in an attempt to lay down some guidelines as to the type of evidence which would be material and otherwise admissible in plaintiff's admitted burden of proving the existence of the agency relationship.
Plaintiff's only other allegation is, 'that the court erred in entering judgment for the defendant, based upon the facts, exhibits and the law.' We do not agree.
The dealership agreements between the dealer and Minneapolis-Moline, Inc. were introduced into evidence. Plaintiff argues that these documents were proof of the agency relationship because they provided that Minneapolis-Moline, Inc. would have certain controls over advertising, would retain a security interest in equipment until the company was paid and that upon termination of the contract, Minneapolis-Moline, Inc. agreed to repurchase and the dealer agreed to resell all new, usable and salable machines, etc. The documents contained other provisions common to a dealer franchise agreement, including a specific provision that the dealer is an independent franchised retail dealer, not an agent of the company, and had no authority to obligate the company in any way. This argument, as to the effect of these documents, was answered by the plaintiff, himself, at trial. The court asked counsel for plaintiff:
'Are you saying that you intend to prove a specific agency by contract between Minneapolis-Moline and Springfield Implement Company?'
Answer: 'No, definitely not, Your Honor, because the contract shows different. The only way you can show an agency is by the acts of the parties themselves * * *'
Plaintiff tried to show circumstances surrounding the dealer's operation that would estop Minneapolis-Moline, Inc. from denying the existence of an agency relationship. The dealer testified on behalf of the plaintiff. However, he admitted that he, the dealer, owed the down payment to the plaintiff and said nothing about any representation to the plaintiff that he was the agent of or acting on behalf of Minneapolis-Moline, Inc. There was no evidence that Minneapolis-Moline, Inc. knew of the contract at the time it was executed, and there was no evidence of ratification. The evidence established that Hancock contracted with the dealer and only with the dealer. There was no evidence of any relationship between Hancock and the manufacturer, Minneapolis-Moline, Inc. The cases cited by plaintiff deal more with the extent of the liability of a principal and not with the real issue of this case, I.e., was there an agency-principal relationship in any degree?
The burden of proof is on the plaintiff to prove this relationship where plaintiff brings suit upon a contract alleged to have been made by an agent. Jerman v. Neef Bros. Brewing Co., 46 Colo. 33, 102 P. 743. See, 3 Am.Jur.2d Agency s 348. The trial court's judgment that plaintiff failed in this burden of proof is amply supported by the evidence.
COYTE and DWYER, JJ., concur.