Whitaker v. Ballard

178 Mass. 584 | Mass. | 1901

Knowlton, J.

The principal questions in this case arise on the defendant’s answer of payment. Inasmuch as there was no contention that payment was made to the plaintiff personally, the burden of proof was on the defendant to show that the person to whom he made the payment was an agent of the plaintiff, duly authorized to receive it for him.

The defendant requested the court to instruct the jury that “ Adams’s authority to receive payment having been established, the burden was-upon the plaintiff to prove that the authority had been revoked, and that knowledge of its revocation had been brought home to the defendant prior to the payment.” So far as appears from the evidence stated in the bill of exceptions, the judge was. not bound to assume that Adams's authority to receive payment of this particular tax was established. The evidence was of a general character which would well warrant a finding that at one time he had authority to receive such payments; but such a finding would be only a matter of inference and not of uncontrovertible proof as to this particular tax. So far as appears it was a sufficient reason for refusing to give the instruction requested that it assumed thé existence of a fact which the jury might or might not find to be proved. But if it had been proved, the burden of proof was on the defendant to show that the authority remained unrevoked at the time of the payment, or that he paid in good faith, relying on the previous existence of the authority; and believing that it remained unrevoked. In the absence of evidence of revocation he might have relied on a presumption that the conditions remain unchanged, and as a matter of proper inference a verdict might have been returned in his favor. But such a verdict would have been rendered, not because the burden of proof was on the plaintiff, but because in the absence of further evidence, proof of the antecedent fact met the requirement of proof by the defendant. The instruction given, that the burden was on the plaintiff to prove a revocation of the authority, was therefore, too favorable to the defendant.

The uncontradicted evidence shows that the authority, if it ever included this tax, had been revoked. The defendant’s own admission that. he knew that a suit had been brought against him by the plaintiff for the tax before he paid it, and that he knew there was a ground on which he could get that suit dismissed, and that Adams told him he could not sign the plaintiff’s name to a receipt for payment, as he formerly had been accustomed to do, coupled with Adams’s testimony that he told the defendant that the plaintiff had instructed him not to receipt any more tax bills in his name, shows that the defendant knew that it had been revoked. After the revocation of such authority,- if the defendant made a payment, it is too plain for discussion that the burden of proof would be on him to show that he paid in good faith, relying on the former authority and in ignorance of the revocation.

The evidence of the former suit against the defendant to recover this tax, with the defendant’s knowledge of a reason for dismissing it, was competent, in connection with the other testimony, on the question whether the defendant paid in good faith, believing that Adams was authorized to receive payment for the plaintiff.

Exceptions overruled.