Barnard v. Coffin

• Decision Date: 11 January 1886
• Parties: BARNARD v. COFFIN and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 37

6 N.E. 364

BARNARD v. COFFIN and others.

Supreme Judicial Court of Massachusetts, Suffolk.

January 11, 1886

This was an action of contract. Hearing in the superior court, before KNOWLTON, J., without a jury, who found the following facts:

In March, 1882, the defendants, for a compensation to be paid by a commission, undertook to aid the plaintiff in selling 160 acres of land in Rock Island county, Illinois, by obtaining if possible, offers for it, and communicating them to him for his acceptance or rejection, together with such information as they could readily obtain to assist him in determining his action upon these offers, and by consummating a sale in case such an offer was accepted. Nothing was said about the employment of any subagent, and the plaintiff gave no consent, express or implied, to the employment of any subagent, and no custom or usage to delegate authority to a subagent in such cases was shown, and it did not appear that the plaintiff knew that, in doing other similar business for him, the defendants had ever acted otherwise than in person or by clerks or agents who were under their control, and employed and paid by them on their own account. The defendant Henry lived and kept one of the defendants' business offices at Davenport, Iowa, and the land in question was about 15 miles from that office. One Louis A. Ochs also lived there, and the defendant firm, and the defendant Coffin before the existence of the firm, had been accustomed for more than 20 years to employ him to assist them in selling lands, and from time to time, but not always, to pay him for such services. Immediately after their employment by the plaintiff to sell this land, the defendants employed Ochs to get for them a customer for it if he could, and he undertook the business in the expectation of receiving compensation for his services, as he had done before in similar cases. On or about June 10, 1882, Ochs received from one Peter Haupt an offer of $22.50 per acre for the land, and went to the defendant Henry, and told him he had an offer of $10 per acre for it. The defendants reported to the plaintiff that they had received this offer of $10 an acre, and advised him that in their opinion, it was a fair price, and he, believing it, authorized the defendants to accept it. This fact was communicated to Ochs, who then negotiated further with Haupt, and sold the land to him for $22.75 per acre, and executed a contract of sale in his own name as agent, and received an installment of the purchase money, and caused a deed to be prepared from the plaintiff to one Isaac Fleishman, which the plaintiff subsequently executed and transmitted through the defendants. A deed was then made from Fleishman to Haupt, the balance of the purchase money of $22.75 per acre was paid by Haupt to Ochs, and Ochs returned $1,600 of it to the defendants, who transmitted it, less their commissions, to the plaintiff. The defendants at the time had no knowledge of Ochs' fraud, but believed he had had an offer of $10 per acre, as he represented, and supposed from his statements that the property was worth no more than that.

The court found that Ochs was the agent of the defendants in the business of obtaining and transmitting offers, and assessed damages for the plaintiff in the sum of $2,365.72, and the defendants alleged exceptions.

COUNSEL

B.R. Curtis and S.G. Crosswell, for defendants.

Shattuck & Monroe, for plaintiff.

OPINION

FIELD J.

Of the rulings requested by the defendants the second and third were refused because the facts were not found to be as they were assumed to be in the requests, and this is a sufficient reason for the...