Brooks v. Shaw, 197 Mass. 376

Brooks v. Shaw

197 Mass. 376 | Mass. | 1908

RüGG, J.

The defendants first seek to raise questions as to the competency of an interrogatory, which they were compelled *378to answer. The plaintiff objects that this is not open. The record discloses that the matter first came before a justice of the Superior Court, who ordered that the defendants be defaulted on September 27, unless the interrogatory should before that date be answered. The defendants thereupon claimed an exception to said order. Thereafter, the answer not being satisfactory, nor full, a motion was made before another justice of the Superior Court, who entered an order requiring the defendants to further answer. The defendants took a verbal exception to this order. Another incomplete answer having been filed by the defendants on November 1, 1906, a third justice of the Superior Court ordered that a further answer be filed, and to this order an exception was taken. Thereafter the cause proceeded to trial before the justice who made the first order, and the only bill of exceptions was allowed by him on the eleventh day of May, 1907. Upon this record no exception respecting the interrogatories is before us. The statute governing this question is R. L. c. 173, § 106 and Rule 44 of the Superior Court. The material-part of the rule is: “ Exceptions alleged in the trial of a civil case shall be reduced to writing and filed, . . . within twenty days after the verdict or finding in the case is rendered, or after the opinion, ruling, direction, or judgment exceptéd to in a case not on trial is given, unless for cause shown further time is allowed by the court.” It does not appear that any further time was allowed for filing exceptions in this case. The orders excepted to were made by three different justices of the Superior Court. It is irregular and improper to embrace in a single bill exceptions taken at different stages of the case before different magistrates. The only provision for an allowance of exceptions by any other than the justice before whom they are taken is in the case of disability, death or resignation, as provided in R. L. c. 173, § 108. Moreover, the rule requiring the exceptions to be filed within twenty days after the ruling or direction excepted to was not complied with as to any of these orders to answer interrogatories. Where exceptions are taken to interlocutory orders, the only course open, conformable to the statute and rule, is for the aggrieved party to file his bill of exceptions and have it allowed by the justice of whose act he complains. When the case is ripe for final judgment, or is in a condition to be finally *379disposed of in the Superior Court if the exceptions are overruled, then all bills of exception allowed both as to interlocutory and final matters are to' be entered in the full court. Safford v. Knight, 117 Mass. 281. Lowd v. Brigham, 154 Mass. 107. The general practice has been in conformity with this view. Spinney v. Boston Elevated Railway, 188 Mass. 30. Toland v. Paine Furniture Co. 179 Mass. 501. Hancock v. Franklin Ins. Co. 107 Mass. 113. Robbins v. Brockton Street Railway, 180 Mass. 51. Soebel v. Boston Elevated Railway, ante, 46.

The trial judge found that for a period of many years prior to September 1, 1904, one M. M. Sawin carried on an express business between Boston and Cambridge under the name of “Sawin’s Express,” and that Herbert E. Sawin was assistant manager. The defendants acquired the business in September, 1904, and continued to carry it on under the name of “ Sawin’s Express ” in the same manner in which it had been carried on theretofore without change in the name, lettering on wagons, or bill heads, and Herbert E. Sawin was continued as the agent at Cambridge in charge of the business. In November, 1905, a dress belonging to the plaintiff was lost while being transported by Sawin’s Express from Boston to Cambridge, it having been received from the consignor on a contract limiting liability in case of loss to $50. The defendants were unable to find the package, and Herbert E. Sawin in a conversation with an agent of the plaintiff said, in substance, that he preferred, rather than to pay for the one that was lost, that the plaintiff should get a hew dress and that he would settle for it. At the time of this conversation neither the plaintiff nor her agent had any knowledge of the transfer of Sawin’s Express to the defendants, but believed that it was being carried on by the same persons as before the sale. Herbert E. Sawin disclosed no agency, and purported to act as principal, but in fact had no authority to bind the defendants by the proposition made, his instructions being to refer all claims in excess of $3 to the Boston office. No notice of this limitation of authority was brought home to the plaintiff or her agent. The judge further found that Herbert E. Sawin in dealing with the plaintiff and her agent was in fact agent for the defendants, who wei’e undisclosed principals, and ruled that the plaintiff had a right of action against the defend*380ants, and that they could not set up the limitation which they had imposed upon the authority of Sawin and found for the plaintiff. The judge also refused to rule that if at the time of the promise the plaintiff and her agent supposed that M'. M. Sawin was the owner of the Sawin’s Express, and did not understand or know that Herbert E. Sawin was acting for the defendants, then the plaintiff was bound by the actual authority of Herbert E. Sawin. The defendants’ exception to the judge’s refusal to give this ruling and to the ruling actually made brings the case before us.

The defendants held out Herbert E. Sawin as their agent to transact their business in Cambridge. He had express authority to settle claims not exceeding $3. The doctrine that an undisclosed principal may be charged with responsibility for and avail himself of the benefit of the acts of his agent is well settled. Byington v. Simpson, 134 Mass. 169. It follows from this, that, when the relation of principal aná agent is found to exist, the ordinary rules of responsibility of the principal to third persons for the act of his agent are established. The principal is responsible for all acts of the agent within the apparent scope of his authority, or, to use the phrase of Mr. Justice Holmes in 5 Harvard Law Review, 1, “ If, under the circumstances known to him, the obvious consequence of the principal’s own conduct in employing the agent is that the public understand him to have given the agent certain powers, he gives the agent those powers. . . . An agent’s ostensible powers [are] his real powers.” Limitations as between the principal and agent of an apparently general authority, not brought to the knowledge of third persons, do not affect the rights of the latter. One of the usual incidents of carrying on business is to settle the losses that occur in connection with that business. By an arrangement between the defendants and Herbert E. Sawin, the agent’s authority as to losses was limited to $3, but his ostensible powers gave no notice of any limitation upon the extent of his authority in this respect. Therefore the plaintiff was not bound by it. Watteau v. Fenwick, [1893] 1 Q. B. 346. Edmunds v. Bushell, L. R. 1 Q. B. 97. Spurr v. Cass, L. R. 5 Q. B. 656. Irvine v. Watson, 5 Q. B. D. 414.

Exceptions overruled.