Boice-Perrine Co. v. Kelley

• Decision Date: 04 January 1923
• Citation: Boice-Perrine Co. v. Kelley, 243 Mass. 327, 137 N.E. 731 (Mass. 1923)
• Parties: BOICE-PERRINE CO. v. KELLEY.
• Court: Supreme Judicial Court of Massachusetts

243 Mass. 327

137 N.E. 731

BOICE-PERRINE CO.

v.KELLEY.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 4, 1923.

Report from Superior Court; Middlesex County; Franklin T. Hammond, Judge.

Action of contract by the Boice-Perrine Company against George H. Kelley for $62.46, the price of two automobile tires alleged to have been sold by plaintiff to defendant. Reported from the superior court after a directed verdict for plaintiff, with condition that, if the order directing the verdict was right, judgment was to be entered thereon, and otherwise such order entered as should accord with the determination of the full court. New trial ordered.

The defense was that payment for the tires had been made to Fred W. Dogherty, plaintiff's agent. Defendant filed a bill of exceptions, which was dismissed on motion because of insufficient notice, and the case was then reported.Charles E. Lawrence, of Boston, for plaintiff.

John F. Ryan, of Boston, for defendant.

RUGG, C. J.

This is an action of contract to recover the price of two automobile tires sold by the plaintiff to the defendant. There is no question that a sale took place. The controversy concerns the authority of one Dogherty, a special agent of the plaintiff, to collect payment. The testimony of the treasurer of the plaintiff tended to show that in December, 1917, it received an order from Dogherty for two tires for $62.46 net by invoice in due form, that the tires were shipped by the plaintiff's truck in ordinary course to the defendant and were receipted for by the defendant's agent and bill was sent to the defendant, that later he had conference over the telephone with some one who answered his call for the defendant's telephone and was told that payment had been made to Dogherty, and that thereafter he called at the defendant's place of business to see the receipt signed by Dogherty, but it was not shown to him, that Dogherty was a salesman for the plaintiff authorized to receive orders only and not authorized to deliver goods or to receive payments. There was other testimony from the defendant and witnesses called by him to the effect that two tires were bought from Dogherty in December, 1917, who had the tires with him and delivered them to the defendant at the time of the purchase; that later two other tires were delivered at the defendant's place of business in his absence and receipted for and subsequently returned to the plaintiff; that in January, 1918, Dogherty at defendant's place of business requested payment, which was made to him, although the receipt showed $55 paid for the $62.46 account; that about February 1, 1918, a statement for the amount due was received by the defendant from the plaintiff; that thereupon the bookkeeper of the defendant by telephone told the man in charge of the plaintiff's accounts that the bill had been paid to Dogherty, and that the plaintiff's accountant replied that the sending of the statement was a mistake, that he was sorry, and that no further statements would be received from the plaintiff; that shortly thereafter the plaintiff's treasurer called on the telephone and the situation was explained to him, and later he came to the defendant's place of business and was shown the bill receipted by Dogherty, and ‘said something to the effect that Dogherty had got him in bad a number of times'; that nothing further was heard for several months, when an attorney claiming to represent the plaintiff said by telephone that the salesman, Dogherty, was not authorized to receive payments. All this evidence was introduced without exception.

There appears to be no question but that the tires were bought of the plaintiff. That is shown by the receipt upon which the defendant in part relies. Therefore the burden of proof was upon the defendant to show that he had made payment to an agent of the plaintiff authorized to receive payment Whitaker v. Ballard, 178 Mass. 584, 589, 60 N. E. 379.

There is no direct evidence to show that Dogherty was authorized to receive payment. The uncontradicted testimony of the plaintiff's treasurer was that Dogherty had no authority to deliver goods or to receive payment. If this was disbelieved, there was no proof of Dogherty's authority to have possession of goods of the plaintiff for the purpose of delivery or to collect payment for a sale. Disbelief of testimony is not the equivalent of proof of facts contrary to that testimony. Hyslop v. Boston & Maine Railroad, 208 Mass. 362, 367, 94 N. E. 310,21 Ann. Cas. 1121;Cruzan v. New York Central & Hudson River Railroad, 227 Mass. 594, 597, 116 N. E. 879;Martell v. Dorey, 235 Mass. 35, 41, 126 N. E. 354.

Taking the...