625 F2d 124 Tucker v. L Firestone a St John

625 F.2d 124

Lester W. TUCKER, Jr., Plaintiff-Appellant,
v.
Daniel L. FIRESTONE et al., Defendants-Appellees.
James A. ST. JOHN, Plaintiff-Appellant,
v.
Daniel L. FIRESTONE et al., Defendants-Appellees.

Nos. 78-3364, 78-3579.

United States Court of Appeals,
Sixth Circuit.

Argued June 6, 1980.
Decided July 7, 1980.

Charles E. Brant, Glander, Brant, Ledman & Newman, Columbus, Ohio, for plaintiff-appellant in No. 78-3364.

William E. Santen, Santen, Santen & Hughes Co., LPA, William B. Singer, Cincinnati, Ohio, for plaintiff-appellant in No. 78-3579.

Michael G. Long, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for Eastman Kodak.

A. C. Strip, Harris, Strip, Fargo, Schulman & Hoppers Co., LPA, James A. Hammerschmit, Columbus, Ohio, for Firestone, et al.

Before EDWARDS, Chief Judge, and CELEBREZZE and BROWN, Circuit Judges.

PER CURIAM.

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1

These two appeals are taken from District Judge Robert Duncan's dismissal of their claims against Eastman Kodak Company. These claims arise from money which plaintiffs Tucker and St. John at different times paid to one, Daniel L. Firestone, under contract by which Firestone was to furnish them Kodak films, supplies and sales materials. Plaintiffs admit that Firestone never said he was an agent for Kodak in plaintiffs' transactions with him and that the contracts contained no references to Kodak except to the extent of describing the materials to be furnished.

2

These two suits were continued against Kodak after both plaintiffs had settled their fraud claims against Daniel L. Firestone. In a thorough review of the undisputed facts disclosed by the depositions and exhibits, Judge Duncan granted summary judgment holding that "Kodak had engaged in no act which would allow a reasonably prudent man to conclude that Firestone had the authority to act on behalf of Kodak. Moreover, neither is Kodak estopped from denying any allegation of Firestone's agency." He also held that the record discloses that Kodak had exercised "due diligence" in relation to making it known that Firestone was not a Kodak agent.

3

For these reasons and others set forth in the opinion and orders of District Judge Robert Duncan filed October 27, 1977 in the Tucker case and November 21, 1977, and September 14, 1978 in the St. John case, the summary judgments in both cases are hereby affirmed.