207 Mass. 184 (1911), Parrot v. Mexican Cent. Ry. Co.

Citation:207 Mass. 184, 93 N.E. 590
Opinion Judge:KNOWLTON, C.J.
Party Name:PARROT et al. v. MEXICAN CENT. RY. CO., Limited.
Attorney:A. H. Russell and T. H. Russell, for plaintiffs. H. S. Davis, for defendant.
Case Date:January 03, 1911
Court:Supreme Judicial Court of Massachusetts

Page 184

207 Mass. 184 (1911)

93 N.E. 590

PARROT et al.



Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1911

Jan. 3, 1911.[93 N.E. 591]


Page 187

A. H. Russell and T. H. Russell, for plaintiffs.

H. S. Davis, for defendant.



In this case there was evidence from the two plaintiffs that an oral agreement for the payment of money was made with them by one McDonald, the defendant's general passenger agent in the City of Mexico, which, if it was binding upon the defendant as a contract, justified and required a finding for the plaintiffs. McDonald was not called as a witness, nor was Murdock, the defendant's passenger traffic manager, who was said by the plaintiffs to have been present when this agreement

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was made in Mexico, and to have participated in making it and to have acted under it.

The defense was a general denial that this agreement was made, and a denial that either McDonald or Murdock had authority to make it, and a contention that such an agreement could not be proved by oral testimony because the previous negotiations between the parties touching the subject had been reduced to the form of a contract in writing, and that, if there was any binding contract, it was this writing which could not be contradicted, varied or enlarged by evidence of an oral agreement. The writing was in the form of a letter from one Carson, the defendant's Eastern agent in the city of New York, to the plaintiffs. The plaintiffs wrote a letter in reply accepting the terms stated by Carson.

The subsequent oral agreement made in Mexico, relied on by the plaintiffs, was to make a payment in money of a reasonable sum, probably $2,000 to $3,000, towards the [93 N.E. 592] expenses of the plaintiffs in publishing a sportsman's guide to the Mexican Central Railway, which was the subject to which the previous writing related.

We assume, in accordance with the defendant's contentions, that the writing did not call for the payment of any money by the defendant to the plaintiffs, that it purported to cover the whole subject of the publication of this guidebook, that it was in such a form as merged all previous negotiations between the parties, and that the testimony of what occurred in these negotiations was not competent to show that the writing was incomplete and that the parties contemplated making some further arrangements in regard to the expenses involved in the project. Some of these matters are not plain, and the justices are not unanimous in their view of them.

The exceptions are to the refusal to give numerous instructions requested, to instructions given so far as they were inconsistent with those requested, and to rulings upon evidence. There was a series of requests as to the authority of McDonald and Murdock to make the oral agreement relied on. According to the testimony, McDonald made the agreement, although Murdock was present some of the time, and took part in the conversation. As the case was submitted to the jury it becomes necessary to

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consider whether there was evidence that either or both of these persons had authority to make such a contract.

There was evidence from the answers of the defendant's vice president to interrogatories that McDonald was the defendant's general passenger agent, with offices in the City of Mexico, and was held out to the public as such by the use of his name on letterheads and otherwise; that his duties 'were to exercise direct charge over the work of soliciting and securing passenger traffic for the road, and to make arrangements for that purpose.' It also appeared that the proposed guidebook was intended to 'make known and popularize the hunting and fishing regions' along the line of the railroad, and that the defendant, before making this arrangement with the plaintiffs, had planned to publish a similar guidebook entirely at its own expense. It appeared from the answers of the vice president that the defendant, at and about the time of making this arrangement, advertised in various newspapers and magazines, and that contracts for such advertising were made either by Murdock or McDonald. Murdock's duties as passenger traffic manager 'were generally to supervise the work of the passenger department.' The evidence tended to show that these two men represented the defendant generally at the head of this important department of a great railway corporation, and that their duties could not be properly performed without the frequent expenditure of substantial sums of money. Included in their charge was the advertising department, and the vice president answered that they contracted for the advertising, and had authority to give in return for it a certain amount of free or reduced rate transportation over the defendant's lines. But he said that neither of them had authority to make any contract for any purpose that involved the expenditure of money, without first having obtained special authority from an executive officer of the company. The jury might or might not believe this. If it was true, it was in the nature of a secret limitation of the general authority that these men were held out as possessing. Apparently, they were the general and highest representatives of the corporation that had any direct dealings with the public in reference to the business of the passenger department. They seem to have had all the authority that anybody dealing with the public had to

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bind the corporation by contracts for the expenditure of money in their department. The business which they had in charge called for the expenditure of money. A secret instruction to them, as general agents in charge of such business, that they should obtain permission from an executive officer before expending any money, was not binding upon persons dealing with them in good faith, in reliance upon their ostensible authority. Fay v. Noble, 12 Cush. 1; Merchants' National Bank v. Citizens' Gaslight Company, 159 Mass. 505, 34 N.E. 1083, 38 Am. St. Rep. 453; McNeal v. Boston Chamber of Commerce, 154 Mass. 277-286, 28 N.E. 245, 13 L. R. A. 559; Cincinnati, etc., Railroad Company v. Davis, 126 Ind. 99, 25 N.E. 878, 9 L. R. A. 503. Upon the evidence in this case, the requests for rulings in regard to the authority of McDonald and Murdock were rightly refused.

The thirteenth request, relative to the effect of proceedings at the former trial, was rightly refused. The presiding justice was not bound by any intimations or expressions of opinion of the judge at that trial.

The other requests were for the direction of a verdict for the defendant, and for a ruling 'that there was no evidence that the defendant committed any breach of any contract with the plaintiffs, and the verdict must therefore be for the defendant.' Upon the refusal of such requests, if the judge does not ask the requesting counsel to point out more particularly the propositions of law upon which he relies, it is possible to raise in this court any question of law actually involved in the request and refusal, even though it was never referred to or thought of by the judge or counsel at the trial.

The defendant now contends that the oral agreement was made in Mexico, a country which has not inherited the common law of England, that no evidence was introduced of what the law is in

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Mexico, that there is no presumption in regard to the law of a foreign [93 N.E. 593] country unless it is one which is known to be governed by the common law, and that therefore the plaintiffs cannot prevail because the court cannot find a rule of law applicable to the case. If this view was in the mind of counsel at the trial, it does not seem to have been stated; but we are obliged to consider it.

The question is, By what presumption, if any, will the court be governed under such circumstances? In Story on Conflict of Laws (8th Ed.) 637, in a long and elaborate note is this language of the learned editor: 'Presumption has a proper place, within limits, in regard to foreign laws. Thus it could not be necessary to give evidence that in a foreign country breach of contract, battery, conversion or damage caused by fraud or negligence, would give a right of action.' In Whitford v. Panama Railroad Company, 23 N.Y. 465-468, Judge Denio says in the opinion: 'Hence, if one bring a civil action for false imprisonment, or for an assault and battery committed abroad, he need not in the first instance offer any proof that such acts are unlawful and entitle the injured party to a recompense in damages in...

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