Linde v. Topeka Aircraft Sales and Service, Inc. ( 1963 )

Mr. Justice HARNSBERGER

delivered the opinion of the court.

In two counts plaintiff sued to recover for services and material furnished in connection with the overhaul of defendant’s airplane. Defendant denied, and, upon trial to the court, plaintiff was given judgment against defendant for the full amount claimed. Defendant appeals.

From briefs and argument of counsel, it appears appellant contends the judgment is either not supported by the evidence, contrary to the evidence, or is contrary to law.

The gist of defendant’s position at the trial was that while he admitted the airplane which was overhauled belonged to him, that it was taken by him to plaintiff for repair, and some $900 of the cost of overhaul was paid by him from his personal funds, payment for the service to his airplane should be obtained from Frontier Fiberglass Corporation, a company of which he was president.

The evidence is not particularly conflicting as to material facts, and, of course, where there is conflict, only the evidence most favorable to the successful party may be considered on this appeal. Appellant points out that plaintiff’s shop work-orders bore the name of Frontier Fiberglass Industries, Inc., of Cheyenne, and that one of several statements of the account was in that company’s name. However, one such statement of the same account was in the name of Continental Fibre Glass Corporation of Fort Wayne, Indiana, and another statement, in fact the earliest statement of account, was in the name, “Mr. Arthur Linde [the appellant], Frontier Fibre Glass Industries, Inc., Box 2061, Cheyenne, Wyoming.” If these billings were material evidence upon the issue of the nature of the contract under which service was performed, the most that can be said of them is that they presented a conflict which the trial court was entitled to resolve as seemed best in the exercise of its proper discretion.

But the true issue was not how the billing for services rendered was made, but what was the contract. By appellant’s own testimony, he purchased the airplane in question from plaintiff, through its President, Mr. Meisinger. By Meisinger’s testimony, it appears appellant brought the airplane back to plaintiff-company for the overhaul and discussed the work to be done with Meisinger; that no mention was made of the Frontier Fiberglass Company; and there was no conversation about charging the work and collecting for it from anyone other than the defendant.

It is unnecessary to recount any more of the evidence. From that here noted, the court was justified in concluding there was an implied contract that the appealing defendant would pay for the services rendered. The judgment must be affirmed.

Affirmed.