303 Mass. 437 | Mass. | 1939
No error of law appears on this record in the denial by the Appellate Division of the plaintiff’s “application to vacate” the defendant’s appeal to this court from the order of the Appellate Division dismissing the report requested by the defendant. See G. L. (Ter. Ed.) c. 231, § 108, third paragraph. What evidence was introduced at the hearing on this "application” does not appear. The plaintiff now contends that the defendant failed to comply with the requirement of G. L. (Ter. Ed.) c. 231, § 135, that it should pay to the clerk the estimated expense of the preparation of the papers "within twenty days after the date” of the clerk’s notice of the amount of the estimate. In this matter, relating as it does to proceedings before the Appellate Division itself, we take statements of fact as to such proceedings contained in the opinion of that division as a part of the record. See Santosuosso v. Della Russo, 300 Mass. 247, 249-250. From such statements it appears that the defendant’s counsel deposited the required amount with the clerk within the required time after actual receipt of the notice. But if the statutory words, “after the date of such notice,” do not refer to the date of the receipt of the notice but refer to the date ap
Turning next to the defendant’s appeal, we find the plaintiff contending that the defendant had lost its right to a report under the third paragraph of G. L. (Ter. Ed.) c. 231, § 108, as amended by St. 1933, c. 255, § 1, because it had procured an extension of time for filing its draft report before it had filed any request for report. In fact it filed its request for report within the five days allowed by the statute after notice of the finding, and thereafter it filed its draft report within the time allowed for that as extended. We see nothing in this point. See Conway v. Murphy, 287 Mass. 536; Murphy v. William C. Barry, Inc. 295 Mass. 94.
We now come to the merits of the case. The action is for labor performed and materials furnished in the endeavor to perfect a machine the nature of which does not clearly appear. The defence is that the defendant never contracted with the plaintiff through any authorized agent and so never became bound to the plaintiff. The plaintiff “realized” that the defendant was engaged in the business of manufacturing men’s clothing. “In fact, the desired machine was for the purpose of manufacturing internal sanitary napkins for women.” The plaintiff testified that he did not inquire about and did not know the purpose of the machine, that there was a “general air of mystery about” it. The defendant’s charter empowered it to manufacture all kinds of merchandise.
On this evidence, if it were conceded that the machine was to be adapted for use in the regular business carried on by the defendant, clearly it could be found that Cohen as manager had authority to employ the plaintiff to work upon it. Hartford v. Massachusetts Bowling Alleys, Inc. 229 Mass. 30. Houghton & Dutton Co. v. Journal Engraving Co. 241 Mass. 541, 543. Irwin v. Worcester Paper Box Co. 246 Mass. 453, 458, 459. Anglim v. Sears-Roebuck Shoe Factories, 255 Mass. 334, 338. Conde Nast Press, Inc. v. Cornhill Publishing Co. 255 Mass. 480, 485. Gibson v. Contract Water Proofing Co. 277 Mass. 455. Am. Law Inst. Restatement: Agency, § 73. The defendant’s main argument is that the plaintiff has failed to prove that the machine was, or could reasonably be thought to be, intended for use in the business of manufacturing men’s clothing, of which business Cohen was manager for the defendant, but that for aught that is shown the machine may have pertained to some new or different venture not a part of that
We think the evidence would support a finding that the plaintiff was caused reasonably to think that this machine for shaping cotton wads was related to the business carried on by the defendant under the management of Cohen, especially if the judge believed that the plaintiff did not know the true purpose of the machine. The plaintiff could not be expected to be familiar with everything that might enter into the manufacture of men’s clothing as carried on by the defendant. Accessories of one kind or another might well be made in connection with such a business. Finding the defendant operating a factory, it would be natural to believe that a machine being developed there was intended for use in connection with what was regularly being done there. Departure into a new field would be unusual rather than usual. If the machine had been designed for cutting or shaping pieces of cloth its connection with the business might be more evident, but we cannot say that the shaping of cotton wads was so at variance with the apparent nature of the business as to leave no evidence upon which to draw an inference that the plaintiff was induced by the defendant’s conduct reasonably to believe in Cohen’s authority to act for the defendant in ordering the work. Bennett v. Alumo Co. 277 Mass. 325, 330, 331. Compare James E. Monaghan Inc. v. M. Lowenstein & Sons Inc. 290 Mass. 331, 333; Stoneman v. Fox Film Corp. 295 Mass. 419, 426.
Order denying plaintiff’s motion to dismiss appeal affirmed.
Order dismissing report affirmed.