Koppel v. Massachusetts Brick Co.

| Mass. | Jun 18, 1906

Knowlton, C. J.

This is an appeal by the plaintiff from a judgment of the Superior Court upon an agreed statement of facts, for a sum less than that claimed by him in his declaration. The defendant did not appeal, but says in its brief that “ There is no error of law shown by the record.’? We therefore have no occasion to consider the last part of the account, on which the finding was for the plaintiff.

Upon a submission of an action on an agreed statement of facts, the decision is to be made upon the facts actually stated. In the absence of a stipulation that inferences may be drawn from the facts stated, the question is whether the matters agreed upon establish the plaintiff’s case. Neither the Superior Court nor this court can draw inferences of fact either for or against the plaintiff. Schwarz v. Boston, 151 Mass. 226" court="Mass." date_filed="1890-02-27" href="https://app.midpage.ai/document/schwarz-v-city-of-boston-6423433?utm_source=webapp" opinion_id="6423433">151 Mass. 226. Mayhew v. Durfee, 138 Mass. 584" court="Mass." date_filed="1885-02-27" href="https://app.midpage.ai/document/mayhew-v-durfee-6421581?utm_source=webapp" opinion_id="6421581">138 Mass. 584.

In this case the disputed items of the account are for articles ordered by one Welch and charged to him by the plaintiff. Afterwards an action was brought against Welch by the plaintiff, to recover the price of them, and on his payment of $1,000 to the plaintiff, a settlement was made and Welch was given a release of all demands, without prejudice to the plaintiff’s claim against this defendant. The defendant corporation was not in existence when the order for these articles was given, nor for nearly three months afterwards, and it was not authorized to do business under the R. L. c. 110, §§ 43, 44, until the expiration of nearly a month after its certificate of incorporation was issued, and more than two weeks after the last of the articles had been delivered to Welch.

Even if Welch had assumed to act for a corporation which was then expected to be formed, which does not appear in the statement of facts, and if the corporation had attempted to ratify his act as its agent, it could not have made the original contract binding upon it without introducing into the transaction such elements as would be a sufficient foundation for a new contract. Penn Match Co. v. Hapgood, 141 Mass. 145" court="Mass." date_filed="1886-02-25" href="https://app.midpage.ai/document/penn-match-co-v-hapgood-6421951?utm_source=webapp" opinion_id="6421951">141 Mass. 145. Abbott v. Hapgood, 150 Mass. 248" court="Mass." date_filed="1889-11-29" href="https://app.midpage.ai/document/abbott-v-hapgood-6423274?utm_source=webapp" opinion_id="6423274">150 Mass. 248, 252. Holyoke Envelope Co. v. United States Envelope Co. 182 Mass. 171" court="Mass." date_filed="1902-10-30" href="https://app.midpage.ai/document/holyoke-envelope-co-v-united-states-envelope-co-6427966?utm_source=webapp" opinion_id="6427966">182 Mass. 171. Pennell v. Lothrop, 191 Mass. 357" court="Mass." date_filed="1906-04-03" href="https://app.midpage.ai/document/pennell-v-lothrop-6429370?utm_source=webapp" opinion_id="6429370">191 Mass. 357.

In this case nothing is stated which has any tendency to connect the defendant with the sale of these goods by the plaintiff. We have only the fact “ that after incorporation the property came into the possession of the defendant by a transfer from Welch”; which, so far as it shows anything, indicates a sale by Welch to the defendant.

Judgment affirmed.