Bascombe v. Inferrera

• Decision Date: 27 May 1930
• Citation: 271 Mass. 296,171 N.E. 435
• Parties: BASCOMBE et al. v. INFERRERA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 296

171 N.E. 435

BASCOMBE et al.

v.INFERRERA.

Supreme Judicial Court of Massachusetts, Middlesex.

May 27, 1930.

Exceptions from Superior Court, Middlesex County; Frederick J. MacLeod, Judge.

Action by Henry A. Bascombe and others, doing business as Lord & Webster Company, against Antonio Inferrera. Verdict for defendant, and plaintiff brings exceptions.

Exceptions sustained.

Raymond P. Dellinger, of Boston, for plaintiffs.

Frank H. Pardee, of Boston, for defendant.

CROSBY, J.

This is an action of contract to recover $4,883, the balance, the plaintiffs claim, due for one thousand, eight hundred and forty-seven barrels of flour at $8 to $11.50 per barrel, sold and delivered to the defendant from August 14, 1924, to and including June 1, 1926. The plaintiffs' amended declaration is upon an account annexed. The defendant's answer is a general denial and payment. The defendant testified that he began purchasing flour from the plaintiffs in May, 1923, and from that time until August, 1924, paid the regular invoice price for all flour delivered before the last named date.

The plaintiffs were wholesale dealers in flour, hay and grain, and between August 14, 1924, and June 1, 1926, through one Shaughnessy, a salesman in their employ, sold flour to the defendant who conducted a bakery. The plaintiffs introduced evidence tending to show that the salesman were given a price list of the different grades of flour, and would sell to customers at the price stated in the list; that the customer would sign the order or sales slip, or it would be signed by the salesman; that the salesman had no authority to sell at prices different from those stated in the list unless the order or sale was approved by a member of the plaintiffs' firm; that occasionally a salesman would sell to a customer flour under a contract, which had to be approved by a member of the firm. Shaughnessy testified that he supposed the defendant had contracts with the plaintiffs but that he did not know of any such contracts having been approved by a member of the plaintiffs' firm; that when he collected for the flour sold the defendant after August, 1924, ‘he collected as if the flour had been sold at a contract price’ for $7, $8 and $8.25 per barrel, but he never made this fact known to the plaintiffs who mailed invoices at the current price, as shown on the plaintiffs' amended declaration, the day following the delivery of the flour. The plaintiffs also introduced evidence tending to show that no member of their firm approved any constrct with the defendant for the sale of flour at the prices as testified to by Shaughnessy, and that he had no authority to make such contracts with the defendant.

The defendant testified that he had a contract with the plaintiffs beginning in August, 1924, to purchase flour at $7 a barrel, which expired in the spring of 1925, when he entered into another contract at $8 a barrel; that the second contract continued in force until the first of the year 1926, when he entered into a third contract at $8.25 a barrel which did not terminate until he sold his business in June 1926; that he received all the invoices the day following the delivery of the flour showing the prices as stated in the plaintiffs' amended declaration; that he asked Shaughnessy why the invoice price was different from the contract price, and that Shaughnessy ‘told him not to mind that, that the office had made a mistake.’ The defendant further testified on direct examination that on June 16, 1926, when he gave Shaughnessy a check for $800, he asked Shaughnessy to make out the check and to write on the stub ‘payment in full,’ which was done; that the bill for the flour purchased previous to that date amounted to $823.75 but that Shaughnessy told him it was all right to make the check out for only $800; that this salesman frequently made out checks payable either to himself or to the plaintiffs' firm and that the defendant signed them. On cross-examination the defendant was asked if he owed the plaintiffs anything at the present time and he replied ‘Yes, $23.75 * * * that * * * ($23.75) was all he owed the Plaintiff. * * *’

The rule is well established that a principal is bound by the ostensible powers which he gives to his agent, whatever may be the limitations of that authority as between them. Persons dealing with an agent whose powers are plainly limited are bound to act accordingly. Brooks v. Shaw, 197 Mass. 376, 84 N. E. 110;Danforth v. Chandler, 237 Mass. 518, 130 N.E. 105;American Railway Express Co. v. Mohawk Dairy Co., 250 Mass. 1, 11, 144 N. E. 721, 35 A. L. R. 14;Hale v. Texas Co., 264 Mass. 246, 162 N. E. 354;Guinan v. Famous Players-Lasky Corp. (Mass.) 167 N. E. 235. Shaughnessy as a salesman of the plaintiffs was authorized to make sales of flour. There was evidence that the prices of flour were subject to change from time to time. The authority to sell under the circumstances included an implied power to make contracts fixing the price. Hale v. Texas Co., supra. There is nothing to show that the defendant had knowledge that there was any limitation upon the power of the salesman in this respect. It follows that contracts made by Shaughnessy with the defendant could have been found to be binding upon the plaintiffs. The fact that in his dealings with the plaintiffs from May, 1923, to August, 1924, the defendant had purchased flour at the invoice prices did not as matter of law charge the defendant with knowledge that the salesman did not have authority to make sales to the defendant in August, 1924, and thereafter, for less than the invoice prices. Whether the salesman had such authority, and whether the defendant acted in good faith in reliance upon the contracts entered into with the plaintiffs' agent were questions of fact for the jury to determine upon all the evidence. The facts in the present case are distinguishable from those in Rogers v. Holden, 142 Mass. 196, 7 N. E. 768, where it appeared that the defendants ordered goods of the plaintiffs' agent at a certain price, and the agent and the defendants combined to deceive the...