281 Mass. 440 | Mass. | 1933
This is an action of contract to recover a balance due on a contract for the installation of plumbing and heating in a dwelling house. The jury returned a verdict for the plaintiff in the sum of $850 and thereafter, in accordance with leave reserved, the judge directed the
It is the contention of the plaintiff that the defendant was an undisclosed principal and as such ratified the act of its agent in making the plumbing and heating contract. In order to determine the relation of the parties it is necessary to recite the evidence upon which the plaintiff relies. He testified that he was in the heating and plumbing business and had installed the heating and plumbing in four houses in the summer and fall of 1928; that in connection with this work he met one Stead and, as a result of some talk or contract had with him, he started work under a separate contract for each house; that he met one Whitney often in connection with the transaction; that Whitney took care of the financing of the first three houses, and was employed by the defendant; that he later learned that Whitney had taken title to the houses; that Whitney told him he would straighten out the contract with the plaintiff and would make the contract with him, or would sign a contract with him; that he was approached by Whitney in connection with the work he was to do on the last house; that he met him in the office of the defendant, and one Liston, the treasurer of the defendant, was present, and also was present during some of his talks with Whitney; that Whitney wanted to know if he would do the work on the last house; that the plaintiff replied that he would, but knowing there had been more or less trouble he wanted some security on the house, and he stated to Whitney he would like a contract; that Whitney told him to prepare one and come to his office; that he drew a contract and took it to the office of the defendant and went into Whitney’s office and the latter signed it; that it was dated November 16, 1928, and Liston, the defendant’s treasurer, was not present at that time; that after the contract was signed the plaintiff proceeded with the work and later had some talk with Liston about the work on the last house; that after the house was finished he had talks with him at different times; that the treasurer talked about a law suit pending in Boston; that while the work was being per
On cross-examination the plaintiff testified that Exhibit 3 (which was a bill for the work) was sent to the defendant; that the word “Agent” after the name Ernest C. Whitney was written in pencil by his bookkeeper; that he did not know when she wrote it; that the charge appears on his books against E. C. Whitney; that the word “Agent” does not appear on his books; that the last of his dealings with the Steads was on the first two houses, and that while he was doing work for them he received payments from the treasurer of the defendant at its office and some of them
Whitney, called as a witness by the plaintiff, testified that he was employed by the defendant selling lumber and negotiating mortgages; that he negotiated the sale of lots of land in connection with the Steads, and arranged with the treasurer of the defendant for construction mortgages, but took orders for lumber, and when payments became due on the construction loan he obtained payments from the construction mortgagee and delivered them to the treasurer and wrote out the checks for Liston to sign, and the latter distributed all the money that the Steads received on the construction loans from the mortgagee; that he would examine the property from time to time and report to the mortgagee whether the property had reached the stage of construction to entitle the Steads to a payment on the construction loan; that at some time he took title to the premises; that, at that time, or before that time, payments were assigned either to the treasurer or to the defendant itself, for protection of some of the defendant’s bills on the property; that subsequently the mortgages were foreclosed and any equity that he had in the property was “wiped out” by the foreclosure sale; that he held the property as a straw for the benefit of all concerned; that all the checks on the construction loan were made out to the treasurer of the defendant and to the Steads.
The foregoing is a summary of all the material testimony. It is the contention of the plaintiff that the defendant ratified the act of its agent and employee, Whitney, in making the heating and plumbing contract with the plaintiff. The law applicable to cases of this kind is well settled. It was said in Raymond v. Crown & Eagle Mills, 2 Met. 319, 324: “The authorities are uniform in maintaining the doctrine, that when the principal is unknown to the vendor at the time of the sale, he may, upon discovering the principal, resort to him, or to the agent with
Upon the entire evidence in the case at bar considered in the aspect most favorable to the plaintiff there is nothing upon which to base a finding that Whitney intended to act as agent for the defendant in his dealings with the plaintiff. In these circumstances there can be no ratification and the plaintiff cannot recover. On the other hand, if such an intention could be found to exist from the relation of the parties, the interest which the defendant had in the property, and the agency which existed between the defendant and Whitney for other purposes, and if the further facts would justify a finding of ratification, still the plaintiff must fail for the reason that he has plainly manifested an intention to rely solely upon the credit and responsibility of Whitney in this transaction. It appears from the plaintiff's testimony that after he had knowledge of the interest which the defendant had as assignee of the property on
Exceptions overruled.