George N. Pierce Co. v. Beers

190 Mass. 199 | Mass. | 1906

Sheldon, J.

The defendant’s answer to the plaintiff’s declaration was a general denial. The case was referred to an auditor, who heard evidence offered by both parties and made a report. At the trial in the Superior Court, after the pleadings were read, the defendant asked the judge to rule that neither the first nor the second count of the declaration set out any cause of action against the defendant or assigned any breach by him of any contract; and the first question that comes before us is raised by the defendant’s exception to the refusal of the judge so to rule. The auditor states in his report that the defendant made these objections before him, but only after all the evidence was put in.

The defendant now makes certain specific objections to the sufficiency of the averments of these counts, which might call for attention if they had been taken by a demurrer setting them out, though we do not mean to intimate that such a demurrer, if made, would have been sustained. But we think that he had waived these objections by going to trial without raising them on the record. Preston v. Neale, 12 Gray, 222. It is well settled that such objections should be taken by demurrer; and where this has not been done, it is sufficient if there are facts enough proved at the trial to establish a cause of action which has been defectively stated in the declaration. Foster v. Leach, 160 Mass. 418. Downs v. Hawley, 112 Mass. 237. Shattuck v. Marcus, 182 Mass. 572. The defendant’s exceptions to the refusal to give the first, second and eleventh instructions asked for by him must be overruled.

The defendant also argues that there was not sufficient evidence to warrant a finding for the plaintiff on the first and second counts upon which the verdict for the plaintiff was rendered. But we think that the facts found by the auditor sufficiently show a breach of the duty owed by the defendant to the plaintiff as his employer; and it was correctly ruled that the measure of damages under these counts was the difference between the price received for each item by the plaintiff and the market value of the wheel at Boston at the time of sale ; and the finding that the net retail price represented that market value was one which the auditor was warranted in making as between these parties. Nor can it be said that the successive wrongful sales made by the defendant were respectively waived by the plaintiff by continuing to employ him, as the defendant contends, relying on Forbes v. Appleyard, 181 Mass. 354; for the auditor has found that these transactions of the defendant were unknown to the plaintiff, and that he was discharged as soon as they were discovered. The real fact, as found by the auditor, is that the defendant wrongfully made all these sales to himself at a smaller price than that for which he was allowed to make them, under the false pretence that they were really made to a wholesale agent of the plaintiff, and thereby procured and induced the plaintiff to receive in payment the smaller prices for which it would have sold them to the wholesale agent if he had been really the purchaser. It would be a reproach to the law if it could afford no remedy for such misconduct. The case comes within the rule that an agent to sell cannot himself purchase. Goodell v. Goodell, 173 Mass. 140, 146. Commonwealth v. Cooper, 130 Mass. 285. Smith v. Townsend, 109 Mass. 500, 502. Farnsworth v. Hemmer, 1 Allen, 494. Copeland v. Mercantile Ins. Co. 6 Pick. 198, 203. This is especially true where the agent undertakes to make more advantageous terms for his own benefit by pretending that the sale is really made to one to whom the seller is willing, for special reasons, to give those terms. And as to the measure of damages there was nothing to control the auditor’s finding. The defendant’s exceptions to the refusal to give the third, fourth, ninth and tenth instructions asked for by him must be overruled.

Nor can it make any difference that some of the sales in question were made by the defendant outside his working hours. The sales were none the less sales made in reality to himself instead of being made to others, and none the less made under the false pretence which we have stated and for a smaller price than that for which he had the right to make them. His liability for this actual misfeasance does not depend upon the time or place of the misfeasance. It operated as an obtaining of the plaintiff’s goods by means of false pretences at a less price than he was entitled to obtain them. The fact that one is employed by a merchant to render services during business hours cannot give him any license to defraud his employer in the evenings or on holidays. Accordingly his sixth, seventh and eighth requests for rulings were rightly refused.

His fifth request was given.

It follows from what we already have said that the rulings made at the request of the plaintiff were made properly; and as the defendant, upon the rulings made and refused, did not desire to go to the jury, he cannot complain of the action of the judge in ordering a verdict for the amount found by the auditor in favor of the plaintiff upon the first and second counts.

Exceptions overruled.