264 Mass. 246 | Mass. | 1928
It is established as law in this Commonwealth that a principal is liable on a contract made in his behalf by an agent, if the agent, in making it, is acting within his ostensible powers, and the other contracting party is not aware
The plaintiff’s wife held a mortgage upon a garage and adjacent land in Walpole. The defendant leased from the mortgagor part of the land, and installed tanks, pumps and signs for the sale of gasoline. About November 15, 1925, upon default, the mortgagee took possession; and the plaintiff thereafter operated the garage and sold -gasoline from the pumps. He negotiated with one Manson, agent in Walpole for the defendant, about the purchase and the price of gasoline and was told that he could have it at the price paid by his predecessor, the tank price “and at the end of the month we give him three cents off for each gallon if he will sell only Texas gas.” Defendant’s tank trucks left gasoline and measured the tanks daily, and each evening Manson called at the garage and collected the tank price per gallon. At the end of the month he allowed on the next month’s gasoline three cents per gallon for what had been sold. This allowance was given for about two months, and then Manson said he must reduce the credit to two cents per gallon. The allowance of two cents was made for a month or two, and
The defendant’s superintendent for sales in New England testified that Manson’s authority was limited to the sale of gasoline, the taking of orders and receiving payments for such deliveries as were made for cash; that if an employee delivering gasoline wished a commercial allowance given to an account for sale of a certain quantity, he made out a credit slip and forwarded it to the superintendent who, if he approved, indorsed and allowed it; that no one else had authority to give such allowance to the plaintiff; and that Manson never had authority to give such allowance. A credit memorandum was put in evidence which the superintendent had approved giving a commercial allowance of two cents per gallon on 2,350 gallons “used in January before S186 dated 11/23/25 expired.” No explanation of “S186” appears in the report. The foregoing is all the evidence reported as material.
Obviously there was controverted evidence for a jury; Enough appears to justify findings that ostensibly the agent had. authority to fix the price of gasoline, and to make that price three cents or two cents a gallon less than the tank price if only Texas gasoline was sold. Ordinarily power to sell an article in daily use with prices hable to change from day to day includes power to fix a price. There is nothing to show the plaintiff had notice or knowledge of any limitation on. the power of the: agent. The terms agreed upon were
It follows that the judge was right in refusing to take the case from the jury, and that judgment should enter for the plaintiff upon the verdict.
So ordered.