Drake v. Metropolitan Manufacturing Co.

218 Mass. 112 | Mass. | 1914

Loring J.

The facts of this case were in substance as follows: One Durand, who was employed by the defendant as a canvasser, on July 6, 1910, delivered to the plaintiff in the first action (whom we shall hereafter speak of as the plaintiff) a set of lace curtains, valued at $10.50, under a written lease, which contained the following provision: “ I agree that said Metropolitan Mfg. Co. may cancel this contract any time prior .to the acceptance of payment by an authorized collector of said company, or before the delivery of the goods.” This agreement was signed by the plaintiff. At the time that the curtains were delivered by Durand to the plaintiff he received from her eighty cents, and the following statement is printed and written on the lease then given her: “Date 7/6 Cts .80 Paid to Durand Canvasser Verified by Collector.” Just below this occur the following words: “Pay no money unless duplicate agreement of this lease is presented by our collector. Caution: Pay no money to canvassers except first payment on delivery of goods.” By the terms of the lease the plaintiff was to pay the defendant twenty-five cents a week.

There was evidence that on the third day of the following November Durand forcibly entered the plaintiff’s house and retook the curtains. These actions were brought for the assault and battery then committed upon the plaintiff, the second action having been brought by the plaintiff’s husband.

It is stated in the bill of exceptions that “the defendant does not contend that the jury were not justified in finding that an assault was committed by Durand, or that such assault was justified.” The defendant’s contention was that the plaintiff had failed to prove that Durand, in committing the assault, was acting in the course of his employment by the defendant, and for that reason that a verdict should have been directed for the defendant. And it further contended that the ninth and tenth rulings asked for by it should have been given.

The defendant introduced evidence that under the written contract by which Durand was employed, “Agents are held responsible for leased goods until the leases are verified and one payment has been made by the customer to the regular authorized collector and accepted by us. If the collector is unable to verify or recover the goods, they will be charged to the agent at 60% and deducted from any commissions, salary or security due him. If we cannot verify and accept a lease, the agent will be notified; if we cannot repossess the goods, the agent will pay for them.” There was no evidence that any payment had been made by the plaintiff beyond the eighty cents paid Durand when the curtains were delivered. There was evidence introduced by the defendant that it had made two unsuccessful attempts to repossess itself of the curtains in question, one on July 21, and the other on August 31, and that on September 3, in accordance with its contract with Durand, it had charged the goods to him. Its contention was that, the goods having been charged back to Durand, he took them on Ms own account and not in the course of Ms employment when he committed the assault on the plaintiff in the following November. If the jury believed these facts, tMs result would have followed. But the jury were not bound to believe these facts. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314. There was evidence that the curtains were originally delivered to the plaintiff by the defendant. There was evidence that when they were retaken by Durand they were delivered by Mm to the defendant, and so far as appears on the evidence, that the defendant kept them. These facts warranted a finding that the defendant, if the jury did not believe the testimony put in by it, had taken the benefit of Durand’s action in retaking the curtains, and therefore had ratified, if it did not originally authorize, him to take them as its agent. It follows that the first ruling asked for could not have been given.

But we are of opimon that the ninth and tenth rulings asked for should have been given. Undoubtedly an agreement by wMch the plaintiff undertook to waive the rights given her by R. L. c. 198, § 13, would have been void. Desseau v. Holmes, 187 Mass. 486. But the agreement contained in the lease set forth above was not an agreement by wMch the plaintiff waived her right under R. L. c. 198, § 13. It was an agreement by wMch the defendant had a right to cancel the contract before “the acceptance of payment by an authorized collector.” Such an agreement, being an agreement giving a right to cancel the contract, is not a waiver by the plaintiff of her rights in case the defendant undertakes to retake the goods under the contract if not can-celled. For that reason the tenth request should have been given.

In the written lease Durand is described as a “canvasser” and the distinction between a canvasser and a collector is made plain in that agreement. The lessee is cautioned to “Pay no money to canvassers except first payment on delivery of goods.” The only payment made by the plaintiff was the first payment on delivery of the goods, wMch was made to Durand, described in the written lease and agreement as a “canvasser,” and there was no evidence in the case that he was a collector. For these reasons the ninth ruling asked for should have been given also. The entry must be

Exceptions sustained.