Barry v. Mutual Life Insurance Co. of New York

211 Mass. 306 | Mass. | 1912

Sheldon, J.

The only issues of fact raised by the defendant’s answer are by its denial of the fourth paragraph of the bill and its averment that it has paid to the plaintiff the amount which it had agreed to lend to him. These issues have been decided adversely to the defendant, and we should not be justified in reversing the findings made by the single justice. We cannot say that the plaintiff’s testimony is not to be believed, and on that testimony the possession of the check never passed from Phinney to the plaintiff. Markey v. Mutual Benefit Life Ins. Co. 103 Mass. 78, 79.

The only remaining question is whether on these findings the plaintiff is entitled to the relief asked for. Phinney was the defendant’s agent to deliver its letter and check to the plaintiff. This was to be sure a limited agency ;t but within its apparent scope, though no further, the case stood as if it had been the defendant itself, acting through its most general agent, that had undertaken to make the delivery. Phinney might well have been authorized by the defendant to take a receipt or voucher for the papers which he was to deliver. The defendant plainly did not intend that the plaintiff should receive its check until the defendant should have received from him whatever paper it required to show the nature of the transaction and the security it was to have for the proposed loan. It did not even start Phinney on his way to the plaintiff until it had received the plaintiff’s note and policy. It was for the defendant to say what further receipt or voucher it would require. It was therefore within the apparent scope of Phinney’s authority to demand that the plaintiff should sign some voucher. And this was found as a fact at the hearing. The single justice found, and on the testimony of the manager of the defendant’s Boston agency he was well warranted in finding, that Phinney “ was also to attend to certain other matters in connection with the delivery of the check.” This means, as the testimony clearly shows, that Phinney was expected to procure the plaintiff’s receipt or acknowledgment and send it to the defendant.

The finding that this “ was not within the apparent scope of his authority as an agent for soliciting insurance” does not help the defendant. It was not in the latter capacity that he either was or purported to be acting, or that he was authorized by the defendant to act in this matter.

It may be that the single justice could have found that the plaintiff-was guilty of such negligence as to bar him from recovery. But he manifestly was not bound so to find. And upon Barry’s testimony as to the transaction and the circumstances under which he indorsed the check, thinking that he was signing a voucher, the finding is not shown to be wrong. We have held in many cases that one who has signed a release or other paper under a fraudulent misrepresentation as to its contents or effect may avoid his agreement therein contained when it appears also that he was kept in ignorance of its contents by some fraudulent concealment or artifice. That was the case here. Curley v. Harris, 11 Allen, 112. Leddy v. Barney, 139 Mass. 394. O’Donnell v. Clinton, 145 Mass. 461. Rosenberg v. Doe, 148 Mass. 560. Freedley v. French, 154 Mass. 339. Bliss v. New York Central & Hudson River Railroad, 160 Mass. 447. McNamara v. Boston Elevated Railway, 197 Mass. 383. Price v. Rosenberg, 200 Mass. 36. Rollins v. Quimby, 200 Mass. 162. Larsson v. Metropolitan Stock Exchange, 200 Mass. 367.

The final decree must be modified so as to include the costs of the appeal, and so modified must be affirmed.

So ordered.