247 Mass. 162 | Mass. | 1923
The parties stipulated that the plaintiff performed the work, payment for which is sought, and the first question is, whether there is any evidence that it was done under a contract subsisting between the plaintiff and the defendant.
The jury would have been warranted in finding that the defendant had a general contract with the Boston Dredging Company to dredge basins for a dry dock and berthing space for vessels, including the turning basin and approach to it at Quincy in this Commonwealth, and to deposit the major part of the material on the land back of the bulkhead which the defendant had constructed in “ Hayward’s Creek basin,” or where directed by the defendant’s engineer, and when “ the area is filled to the maximum excavation the remainder of the material shall be deposited where the engineer shall direct.” During the progress of the work the defendant ascertained that the surface of the filled area was soft and muddy, rendering it unsuitable for use as a storage yard. The contract included dipper and hydraulic dredging, and the material removed after the flats had been filled was towed away and dumped at sea. The plaintiff under a subcontract with the Boston company had engaged to do the hydraulic dredging and, when the condition of the yard was discovered, Harry A. Hageman, a mechanical engineer employed by the defendant, conferred with Herbert T. Gerrish, the plaintiff’s treasurer and general manager, as “ to the possibility and practicability of securing and depositing over the surface of the fill . . . sand and other material suitable to make such a surface on part of the area back of the bulkhead, as to enable the defendant to use the same as a storage area.” Upon investigation by the defendant’s inspector the sand and other material then being moved by the Boston company was
It was contended by the defendant that the last payment was made for two days’ dredging because of a letter from the plaintiff that it would proceed after September 25 if “ you will agree to pay us for the same direct.” It was decided in Gassett v. Glazier, 165 Mass. 473, 480, 481, that, where a contract is to be gathered from talks between the parties,
The mode of payment however was not as matter of law decisive of the defendant’s liability. The arrangement could be found to have been for the sole benefit of the defendant, where prompt service admitted of no delay and was practically indispensable. It is plain that there was no contract to perform the work in question made by the Boston company with the plaintiff. It is argued however that no contract is shown between the plaintiff and the defendant. The powers of the defendant’s general manager Smith are not disclosed in the record. But, as a witness, he said, “ that he told Mr. Gerrish that Mr. Hageman was to be my local representative on the job; that he was the mechanical engineer who would supervise the work,” and when the defendant paid damages for the injury to the plaintiff’s dredge sustained in doing the work, Smith, as the jury could find, with knowledge of the cause of the injury received while the plaintiff was in performance of the contract made with Hageman, authorized payment to the plaintiff.
It has been often declared that the apparent powers of an agent are his real powers, and Hageman as the local representative of Smith could be found to have been authorized to bind the defendant by a contract made in furtherance of the building of the yard under the conditions shown. Danforth v. Chandler, 237 Mass. 518, 522. If Smith as general manager could bind the defendant, then in so far as necessary for the prosecution of the work, he could delegate the necessary authority to a subordinate, and the jury were to determine whether as his representative Hageman stood in the place of Smith. Phelps v. Sullivan, 140 Mass. 36,
It would follow that the proposal made by Hageman and accepted by the plaintiff to use the Boston Dredging Company as the medium for transmission of the checks, cannot be set up as matter of law for the purpose of destroying the promise on which the plaintiff relied, and by whom the contract has been executed. Rogers v. Holden, 142 Mass. 196.
It is next contended that, even if a contract were established, the defendant was bound only to pay the Boston Dredging Company, and, having done so, the plaintiff cannot recover. But the defendant could be found chargeable with the knowledge of Smith and Hageman that the work was being performed by the plaintiff, and of Hageman that the mode of payment was for its accommodation. The payments to be made were not for work done by the Boston Dredging Company, but by the plaintiff to whom the checks therefor when received by that company were to be indorsed and delivered. The jury, upon being instructed as to the law, were to decide whether the Boston Dredging Company was the plaintiff’s agent to receive and accept payment, or whether the checks with the understanding of all parties were received only for the plaintiff’s use, and until indorsed and delivered there was no satisfaction of the defendant’s debt. Wright v. Old Colony & Fall River Railroad, 9 Gray, 413, 415. The answer is a general denial, and, upon proof of performance, the plaintiff could recover on an account annexed for the work done, and the burden of proving payment was on the defendant, even if this defence is not raised by the answer. Harrington v. Baker, 15 Gray, 538. Simmons v. Lawrence Duck Co. 133 Mass. 298. Attleborough v. Middleborough, 10 Pick. 378, 379. Mulry v. Mohawk Valley Ins. Co. 5 Gray, 541, 543. While it is true that the defendant’s investigator of accounts testified, that by two vouchers the Boston Dredging Company had been paid in full for “ twenty thousand cubic yards of suction dredging which was the subject of the conversation with H. T. Gerrish which he had previously testified to,” and the record recites that he “ testified without contradiction,” his testimony
A verdict for the defendant should not have been directed and the exceptions must be sustained.
So ordered.