England Bros. v. Miller
174 N.E. 483
Mass.
1931
Check Treatment
Field, J.

This is an action of contract to collect the first instalment of the purchase price of a piano, alleged to have been sold by the plaintiff to the defendant. There was a verdict for the plaintiff. A written instrument, dated November 5, 1929, was put in evidence purporting to be signed in behalf of the defendant by one Blanch C. Tanner, whereby the defendant ordered a piano and agreed to pay therefor “the sum of $3775.00 as follows — $500.00 December 23rd, 1929 and $500.00 each month until paid,” with interest at one half of one per cent per month, title to remain in the plaintiff until the purchase price was paid in full. The piano was delivered at the. defendant’s house on November 20, 1929. The only matter in controversy is the power of Blanch C. Tanner to bind the defendant by such an agreement. The defendant excepted to the denial of her. motion for a directed verdict, and to the exclusion of evidence offered by her and the admission of evidence offered by the plaintiff.

1. The motion for a directed verdict was denied rightly. *241A salesman for the plaintiff testified that he called at the defendant’s summer home in Windsor on November 4, 1929, told her that he was “ representing ” the plaintiff and said, “ I came to see you in regard to the electric duo-art piqno that I talked with Mrs. Tanner about for your house,” and the defendant replied, “ Oh, yes. I would like Mrs. Tanner to make the arrangements for that piano, but she is in Pittsfield this morning. If you will wait a while she will be back and you can see her personally,” and that, thereafter, he saw Mrs. Tanner and obtained the order for the piano. On further examination the salesman testified that the defendant said, “ I would like Mrs. Tanner to make the arrangements for the piano. She knows what we want.” The defendant testified that the salesman replied in the negative to her inquiry whether he had “come to tune the pianos,” but her account of the conversation with the salesman differed materially from his account.

The evidence warranted a finding that the defendant represented to the plaintiff’s salesman that Blanch C. Tanner was authorized in her behalf to “make ... arrangements ” with him for a piano for the defendant’s house and the inference therefrom that Mrs. Tanner had actual, or at least apparent, authority to “ make ” such “ arrangements ” in behalf of the defendant. Even if Mrs. Tanner’s authority was apparent only, the defendant would be bound by the “ arrangements ” made by her. Taft v. Baker, 100 Mass. 68, 74. Malaguti v. Rosen, 262 Mass. 555, 563. The jury could have found that in the circumstances disclosed by the. evidence authority to “ make ” such “ arrangements ” with a piano salesman included authority to purchase a piano, using the “ usual and appropriate means to accomplish that result.” Sears v. Corr Manuf. Co. 242 Mass. 395, 400. See Sprague v. Gillett, 9 Met. 91, 92. They could have found, also, that a- contract for the purchase of. a piano on the credit of the defendant was a “ usual and appropriate means ” of making such purchase, even though in this case, unlike Sprague v. Gillett, supra (see also Taft v. Baker, 100 Mass. *24268, 75), there was no evidence that the principal did not furnish the agent with funds with which to make the purchase for cash. See Taber v. Cannon, 8 Met. 456, 458; Cummings v. Sargent, 9 Met. 172; Temple v. Pomroy, 4 Gray, 128, 132. Nor were the provisions for instalment payments and retention of title as security necessarily unusual or inappropriate. Authority in an agent to bind the principal to pay for goods purchased may be more readily implied than authority to borrow money on his credit or give negotiable paper in his name. See Temple v. Pomroy, 4 Gray, 128; Williams v. Dugan, 217 Mass. 526.

2. The plaintiff’s salesman, testifying as a witness for the plaintiff, subject to the defendant’s exception, was asked, “ Were you relying upon the credit of Mrs. Miller or Mrs. Tanner in selling this piano? ” and answered, “ Mrs. Miller.” This testimony was admitted rightly. It was material on the question whether Mrs. Tanner had apparent authority to act for the defendant. If the jury found that Mrs. Tanner had no authority in fact, the defendant would be bound by her representation that Mrs. Tanner had authority only if this representation was relied on by the plaintiff. Bickford v. Menier, 107 N. Y. 490. Mechem on Agency, (2d ed.) §§ 722-724. Testimony as to such reliance, though an undisclosed mental state, was admissible. Crawford v. Moran, 168 Mass. 446, 449. Blaney v. Rogers, 174 Mass. 277. Anastas v. Koliopoulos, 222 Mass. 267, 270. Bradley v. Meltzer, 245 Mass. 41, is distinguishable since the reliance there sought to be proved was not material on any issue in the case. ' The fact that here reliance could have been inferred from the conduct of the parties does not make direct evidence thereof inadmissible.

3. The defendant offered to prove that a witness called by her would testify that later in the day on which the plaintiff’s salesman talked with the defendant the witness heard a conversation, - between the defendant and Mrs. Tanner — the salesman not being present — in which the defendant said, “You can’t buy any piano and bring *243it up here. We haven’t any power to run it. We have got two pianos. We don’t want any more pianos up here.” This offer of proof was excluded, subject to the defendant’s exception. The exclusion was error. The evidence offered bore upon the issue of actual agency as it tended to show that, in fact, Mrs. Tanner had no authority to purchase a piano for the defendant, though it would not touch the matter of Mrs. Tanner’s apparent authority. See Taft v. Baker, supra. According to the offer of proof this conversation took place before the contract sued on was entered into, so that it could have affected the right of Mrs. Tanner to act for the defendant. In this respect the case differs from Wilcox v. Waterman, 113 Mass. 296. We cannot say that the jury did not find for the plaintiff on the ground that Mrs. Tanner had actual authority to act for the defendant. Indeed the judge’s charge indicates that the case was submitted to them on that issue. The exclusion, therefore, may have been harmful. It follows that the first and second exceptions herein considered must be overruled and 'the third exception sustained.

Exceptions sustained.