82 Me. 149 | Me. | 1889
In order to maintain this action the burden of proof is upon the plaintiffs to show that, in the matter in controversy, Thomas Mason was the authorized agent of the defendants, or by them held out as such.
An examination of the testimony not only fails to show this agency, but does show the contrary. Mason had an agency in regard to the logs, but it was confined to the disposal of them after they had been driven to the Penobscot boom. The claim in suit is for driving them above the boom. The duties and responsibilities of these two positions are so different that proof of an agency in one, will have no tendency to show that it exists in the other. Hazeltine v. Miller, 44 Maine, 177. Besides, the ease shows that for all work to be done above the boom, Foster J. Tracy had the sole responsibility and control, by virtue of a written contract with the defendants.
Nor are the plaintiffs any more successful in relation to the other branch of their case. True, it is, that if the defendants have by their words or acts held out Mason as their general agent in respect to these logs, or in respect to this particular transaction, they might be estopped from denying such agency after the plaintiffs had in good faith acted upon such representations. But it is not pretended that the defendants have personally made any such representations. The most that is claimed is that Mason has performed certain acts, in regard to the logs, which have been recognized as valid by the defendants. “But the acts from which authority to do a specific act can be implied, must be of the same general character and effect.” Hazeltine v. Miller, supra. It will be found on examination of the testimony that the acts relied upon to sustain this inference, with perhaps one exception, are such as pertain to the disposal of the logs after their arrival at the boom, and were within the acknowledged agency of Mason. As already seen, they were not of the same “general character and effect” as making a contract for driving
The case also fails to show any recognition of the authority to make, or the validity of the contract now set up. Assuming the contract made as alleged, though this is denied, it does not appear to have come to the knowledge of the defendants until after part or entire performance, and then was at once repudiated.
Motion sustained.