Nat-Jo, Inc. v. Whitehead & Kales Co.

3 Mass. App. Ct. 796 | Mass. App. Ct. | 1975

1. As both appellants agree, the judge erred in refusing to grant declaratory relief. Improved Mach. Inc. v. Merchants Mut. Ins. Co. 349 Mass. 461, 463 (1965). 2. The evidence was insufficient to warrant a finding that Bentley had either actual or apparent authority to bind Whitehead & Kales Company (Whitehead) to the indemnity provision found in the form of rental agreement dated June 25, 1969 (contrast Johnson v. New York, N. H. & H. R.R. 217 Mass. 203, 207-208 [1914]), and, for all that appears, Whitehead did not even learn of the existence of the form until after the occurrence of the injuries and death in question. The judgment of dismissal is reversed, and a new judgment is to be entered which declares that Whitehead is not bound to indemnify the plaintiff against either the LeBlanc claim or the Dris-coll claim by reason of anything found in the form.

Philip J. MacCarthy for the plaintiff. Philip L. Berkeley for the defendant.

So ordered.