255 Mass. 334 | Mass. | 1926
This is an action of contract in two counts alleged to be for the same cause of action. The first is for an alleged breach of a contract in writing reading as follows:
“ Cambridge, Mass., March 23, 1914.
Mr. S. M. Longmire
Sears-Roebuck Shoe Factories
Cambridge, Mass.
Dear Sir:
In compliance with your request and in conformance of our discussion of this morning, at your office, I hereby agree to give License for the use of Spur Track on Purrington St., to your concern, for use for their purposes, for the sum of Seventy-five Hundred Dollars ($7500.00). Such proportion of said sum as is required to complete payment to the New York Central R. R. Co., Boston & Albany Branch for the construction and completion of said Spur and said connection, will be paid over to them simultaneously and the balance of the $7500.00 will be paid to me at that time.
I further agree to reimburse you from full payments received from the next track connections saving and excepting the plant of the Neapolitan Ice Cream Company, and the plant of the Elliott Company, to the extent of $3750.00.
Yours very truly,
(Signed) Sears-Roebuck Shoe Factories.
William J. Anglim.”
The second count is for breach of an oral contract “as is evidenced by the writing.” The answer is a general denial with an averment that the plaintiff is barred by the statute of' frauds. The case was referred to an auditor whose findings as stipulated by the parties were to be final. Upon the coming in of his report there was a hearing by a judge sitting without a jury, at which the only additional evidence was a certain copy of the permit to which the auditor referred in his report. It is not contended that the permit materially affected the auditor’s conclusions. The plaintiff asked for these rulings: “First, upon all the facts, the defendant did authorize the making of the contract with the plaintiff. Second, upon all the facts, the defendant is bound as a party to a contract with the plaintiff, as alleged in plaintiff’s declaration. Third, upon all the facts, the plaintiff is entitled to recover.” The requests were not granted, and, the judge having found for the defendant, the questions raised by these requests are before us.
The defendant, a foreign corporation with its principal office in Chicago, Illinois, had among other factories a factory located in the city of Cambridge in this Commonwealth. The factory, besides a front entrance, had a rear entrance partly on a private way known as Purrington Street. It was not used for the manufacture of shoes but for the cutting of sole leather and the sorting of upper leather, which were shipped to other factories of the company to be made into shoes. The plaintiff according to the report was granted a franchise permit by the city June 18, 1910, and January 22, 1912, for the construction of a spur track from the tracks of the Boston and Albany Railroad through and upon the land referred to as Purrington Street in the report. It is found that on June 18, 1910, the legal title to the land comprising Purrington Street was in the plaintiff and two other
It is contended by the defendant that Longmire had no authority to bind the factory. But Longmire was the manager and superintendent of the factory, the business of which would be benefited if the right to use the spur track could be acquired. The plaintiff had the right, to rely on Longmire’s ostensible powers as being his real powers for reasons sufficiently stated in Gerrish Dredging Co. v. Bethlehem Shipbuilding Corp. 247 Mass. 162, 167. It follows as matter of law on the auditor’s findings, that the defendant was bound by the action of Longmire.
It is immaterial that the defendant’s signature precedes the signature of the plaintiff. The transaction in effect was a proposal by the plaintiff which the defendant accepted, and the proposal and acceptance constituted the contract between the parties. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 185 Mass. 391.
It is plain that the plaintiff has not been prejudiced by the failure to give the first request, and, having failed to prove his own performance of the contract, the second and third requests could not have been given. Hapgood v. Shaw, 105 Mass. 276, 279. Bryne v. Dorey, 221 Mass. 399, 404, 405.
Exceptions overruled.