Pritchard v. Uphams Corner Theatre Co., 238 Mass. 441

238 Mass. 441 | Mass. | 1921

Crosby, J.

In this action of contract the declaration is in three counts: the first is on a promissory note and the defendant does not deny its liability thereon; no question arises respecting the third count as a verdict was ordered for the defendant.

The second count in substance alleges that the E. H. Stafford Manufacturing Company and the defendant entered into a written agreement, which, and the proceeds thereof, were assigned by the company to the plaintiff; that the company'has performed its part of the agreement and that there is due the plaintiff thereunder the sum of $453.17. At the close of the evidence, the defendant filed a motion requesting that a verdict be directed in its favor on the second and third counts; the motion was allowed as to the third count and refused as to the second, and the defendant duly excepted.

It is the contention of the defendant that the evidence did not warrant a finding that an assignment in writing was executed by the Stafford company to the plaintiff; that if such an assignment were so executed, there was no evidence to show that it was executed by any person authorized to act for that company. One Bentley testified that he was vice-president of the E. H. Stafford Manufacturing Company, and had charge of “ the sales end of the business; the selling and the installation work.” He identified his signature on the agreement declared on in the second count, which was signed by him as vice-president. While it did not expressly appear that the E. H. Stafford Manufacturing Company was a corporation, that fact reasonably may be inferred; and it is so assumed in the briefs of the parties.

As the contract declared on in the second count was a non-negotiable chose in action, the plaintiff could not maintain an action thereon in his own name, as assignee, unless the assignment was in writing. R. L. c. 173, § 4, now G. L. c. 231, § 5. Bowen v. New York Central & Hudson River Railroad, 202 Mass. 263. If the E. H. Stafford Manufacturing Company was a corporation it could act only by its duly authorized officers or' agents. If there was a written assignment from the company to the plaintiff, its contents are not before us; there is nothing in the record to show by whom it was executed, and no evidence that it was executed by any person who had authority to act for the company. It follows that the plaintiff failed to offer evidence of original authority given to any person to execute a written assignment, or of ratification of it thereafter by the corporation or its directors, or of acquiescence in it or knowledge of it by any other officer of the corporation; nor was there evidence from which such authority, ratification or acquiescence could be inferred. Fay v. Noble, 12 Cush. 1. Sherman v. Fitch, 98 Mass. 59. Smith v. Smith, 117 Mass. 72. England v. Dearborn, 141 Mass. 590. Bi-Spool Sewing Machine Co. v. Acme Manuf. Co. 153 Mass. 404. New England Mutual Life Ins. Co. v. Wing, 191 Mass. 192. See Hartford v. Massachusetts Bowling Alleys, Inc. 229 Mass. 30. Accordingly the defendant’s exception to the refusal of the court to direct a verdict in its favor on the second count must be sustained.

While in his charge to the jury the presiding judge seems to have assumed that there was a valid assignment of the contract to the plaintiff, the defendant’s rights were not thereby affected, as it had at the conclusion of the evidence seasonably excepted to the refusal of the court to direct a verdict for the defendant on the second count.

As the evidence may not be the same at another trial, the question, whether it was sufficient to warrant a finding that there was a written assignment of the agreement from the Stafford company to the plaintiff, need not be considered.

Exceptions sustained.