319 Mass. 216 | Mass. | 1946
This action of contract is brought by the plaintiff as executrix of the estate of Garabed Aselbegian. In her declaration she alleges, in substance, that the defendants, as attorneys for Aselbegian, collected $667.80 for him for which they have never accounted. The plaintiff seeks to recover this sum with interest at thirty per cent from the date of demand under G. L. (Ter. Ed.) c. 221, § 51. The defendants pleaded a general denial, payment and the statute of limitations. The case was tried to a jury. At the close of the evidence the judge ordered a verdict for the defendants subject to the plaintiff’s exception. At the same time, also subject to the plaintiff’s exception, the judge denied the plaintiff’s motion for a directed verdict. The questions for decision are the correctness of these rulings.
The following is a summary of the relevant evidence: The defendants are partners engaged in the practice of law
In directing a verdict for the defendants the judge ruled that the defence of payment had. been established as matter of law. This was error. Inasmuch as there was no contention that the payment was made to Aselbegian personally, the burden of proof was upon the defendants to show that Morlian, to whom the payment was made, was authorized to receive it. Whitaker v. Ballard, 178 Mass. 584. Boice-Perrine Co. v. Kelley, 243 Mass. 327, 329. Springfield National Bank v. Jeffers, 266 Mass. 248, 252-253. The evidence as to Morlian’s authority is meager. All that the record discloses is that Aselbegian, “through his agent [Morlian], delivered the note to the defendants for the purpose of collecting the same” and that the defendants thereafter reported the progress of the case to Morlian from time to time. There is no evidence of prior dealings with Morlian concerning the affairs of Aselbegian. It cannot be said on this evidence that Morlian’s authority to receive the payments was established as matter of law. Am. Law. Inst. Restatement: Agency, § 71. Mechem, Agency, § 935. Springfield National Bank v. Jeffers, 266 Mass. 248, 252-253.
A more difficult question is whether the evidence would permit a finding that he possessed such authority. If it would, then the plaintiff’s exception to the judge’s refusal to direct a verdict in her favor must be overruled. As to whether an agent has authority to receive payments on behalf of his principal, the rule is that, “unless otherwise agreed, authority to receive payment is inferred from authority to conduct a transaction if the receipt of payment is incidental to such a transaction,. usually accompanies it, or is a reasonably necessary means for accomplishing it.”
Since the judge erred in directing a verdict for the defendants the exceptions must be sustained.
So ordered.