Blum, Jr.'s, Sons v. Whipple

• Decision Date: 27 February 1907
• Citation: Blum, Jr.'s, Sons v. Whipple, 194 Mass. 253, 80 N.E. 501 (Mass. 1907)
• Parties: BLUM, JR.'S, SONS v. WHIPPLE et al.
• Court: Supreme Judicial Court of Massachusetts

194 Mass. 253

80 N.E. 501

BLUM, JR.'S, SONS v. WHIPPLE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1907

COUNSEL

A. K. Cohen, for plaintiff.

John Gordon, for defendants.

OPINION

SHELDON J.

As Newman was employed by the plaintiff corporation merely as a travelling salesman, with no authority to indorse the plaintiff's name upon any checks or other instruments and as he never was held out by the plaintiff as having any such authority, there is no doubt of the plaintiff's right of recovery in this action unless it has lost this right by its long silence after its discovery of Newman's wrongful acts.Robinson v. Chemical National Bank,86 N.Y 404;Buckley v. Second National Bank,35 N. J. Law, 400, 10 Am. Rep. 249;Graham v. United States Saving Institution,46 Mo. 186.He was only a special agent of the plaintiff, with limited authority; and the defendants before taking the checks upon his indorsement were bound to inquire and ascertain the nature and extent of his authority.Lovett, Hart & Phipps Co. v. Sullivan,189 Mass. 535, 536, 75 N.E. 738, and cases there cited.

But the defendants contend that the plaintiff, having allowed more than two years to elapse after learning of Newman's wrongful acts and before it gave any notice to the defendants or made any claim upon them was guilty of laches and now must be taken to have ratified the acts of its agent Newman.They quote the language of Colt, J., in Harrod v McDaniels,126 Mass. 413, 415: 'It is a rule in the law of agency, that when the unauthorized act of the agent is done in the execution of a power conferred, in a mode not sanctioned by its terms, and in excess or misuse of the authority given, ratification by the principal is more readily implied from slight acts of confirmation.The duty to disaffirm at once, on knowledge of the act, is said to be more imperative in such cases, because the confidence of the principal in the fitness and fidelity of the person he has selected as an agent is shown by the relations already established between them.'But in that case there was evidence of ratification by the affirmative acts of the defendant.Nor were Newman's acts, as in some other cases cited by the defendants, done in the execution of a power conferred by the plaintiff, though in a mode not sanctioned by its terms, or merely in excess of the strict limitations put upon his authority.Foster v. Rockwell,104 Mass. 167;Brown v. Henry,172 Mass. 559, 567, 52 N.E. 1073.Nor did the plaintiff receive any benefit from Newman's acts, as in Brigham v. Peters, 1 Gray, 139, nor was there any legal duty incumbent upon the plaintiff to give prompt notice of the facts and of its claims to the defendant; its delay could be nothing more than one of the circumstances to be weighed against it.Greenfield Bank v. Crafts, 2 Allen, 269;Canal Bank v. Bank of Albany, 1 Hill (N. Y.) 287.It could not have been ruled as matter of law that the plaintiff had...