Friend Lumber Co. v. Armstrong Bldg. Finish Co.

• Decision Date: 11 September 1931
• Citation: 276 Mass. 361,177 N.E. 794
• Parties: FRIEND LUMBER CO., Inc., v. ARMSTRONG BUILDING FINISH CO. ARMSTRONG BUILDING FINISH CO. v. FRIEND LUMBER CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 361

177 N.E. 794

FRIEND LUMBER CO., Inc.,

v.ARMSTRONG BUILDING FINISH CO.

ARMSTRONG BUILDING FINISH CO.

v.FRIEND LUMBER CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 11, 1931.

Exceptions from Superior Court, Suffolk County; M. Morton, Judge.

Separate actions by the Friend Lumber Company, Inc., against the Armstrong Building Finish Company with trustee process, and by the Armstrong Building Finish Company against the Friend Lumber Company, Inc., were tried together. A verdict was returned for plaintiff in the first case, and a verdict which was directed for plaintiff in the second case was later set aside and a new trial granted, and the Armstrong Building Finish Company brings exceptions.

Exceptions overruled in both cases.F. R. Mackenzie and T. L. Thistle, both of Boston, for Friend Lumber co., inc.

F. L. Simpson, of Boston, for Armstrong Building Finish Co.

RUGG, C. J.

These two actions of contract were tried together. The one in which the Friend Lumber Company, Inc., hereafter termed the Friend Company, is plaintiff will be called the first case, and the one in which the Armstrong Building Finish Company, hereafter termed the Armstrong Company, is plaintiff will be called the second case.

1. The first case is an action upon an account annexed, consisting of ten items of charge for lumber, a cash credit of $100, and an item of interest from the date of demand to the date of the writ; the balance due was $2,238.33. Verdict was returned for the plaintiff. There was no controversy at the trial that the plaintiff did not furnish the lumber charged and deliver it at the so called Walk Hill street property. Confessedly this was done pursuant to orders given by one Sandler. The controversy was whether this was an independent enterprise of Sandler or whether the defendant had authorized or ratified the action of Sandler in ordering the lumber. At the times here material, Sandler, one Citron, and one Albert were the directors and sole stockholders of the Armstrong Company, Sandler being president, and Albert treasurer. All the business of the corporation was done by unanimous vote of the directors and no one of them had actual authority to close contracts. An officer of the Friend Company was permitted to testify (1) that Sandler said, when demand was made for payment of the Friend Company's bill, that he would give as collateral a mortgage on the Walk Hill property that they were building provided terms could be agreed upon and that he would have to take it up with the other officers of the Armstrong Company, and further (2) that later on going to the office of the Armstrong Company he saw Citron and Albert who said that they would take the matter up with Sandler and let the witness know later and that their corporation had made no money on the Walk Hill property. The statements of Sandler were admissible as tending to show that he purported to be acting for the Armstrong Company as principal and not for himself. They were admissible not to prove the truth of the assertions of the alleged agent, but to show that he stated that he was acting as agent and not as the principal in the transaction. Jefferds v. Alvard, 151 Mass. 94, 23 N. E. 734;Estes v. Aaron, 227 Mass. 96, 99, 116 N. E. 392;Wilson v. Davison, 242 Mass. 237, 242, 136 N. E. 354. This is quite different from an attempt to prove by evidence of statements of the agent the extent and nature of his authority; that is not permissible. Treasurer and Receiver General v. Macdale Warehouse Co., 262 Mass. 588, 593, 160 N. E. 434. The evidenceof the conversation with Citron and Albert was admissible as bearing upon the liability of the defendant. These two with Sandler constituted the stockholders and directors of the defendant. Conversation and conduct of all three indicated the Armstrong Company as the principal in the transaction and were competent. North Anson Lumber Co. v. Smith, 209 Mass. 333, 337, 338, 95 N. E. 838;Vigeant v. Jeanne D'Arc Credit Union (Mass.) 171 N. E. 440. Testimony of an officer of the Friend Company was admitted to the effect that having called the Armstrong Company on the telephone he talked with some one other than Sandler saying that he would buy lumber provided the prices were as low as prices of others and that the orders thus given should go as a credit on the account of the Friend Company against the Armstrong Company, and that he bought the lumber on these conditions. This conversation was competent as tending to show that he believed the sales of limber by the Friend Company were to the Armstrong Company and not to Sandler, and that he acted in good faith in the belief that he was dealing with the Armstrong Company through an authorized agent. Mussey v. Beecher, 3 Cush. 511, 516;Bascombe v. Inferrera (Mass.) 171 N. E. 435. Cases like Dorchester Trust Co. v. Casey, 268 Mass. 494, 176 N. E. 178, are quite distinguishable.

There was no error in the refusal of the trial judge to admit in cross-examination of the witness Thistle statements made by him in conference at the bench. The judge knew what those statements were. The offer of proof does not tend to show bias or interest on the part of the witness. It was a matter resting in the sound discretion of the judge and that discretion appears to have been wisely exercised. Jennings v. Rooney, 183 Mass. 577, 579, 67 N. E. 665;Commonwealth v. Klosek, 262 Mass. 416, 419, 160 N. E. 252.

The motion of the Armstrong Company for a directed verdict in its favor was denied rightly. There was ample evidence that the other two stockholders and directors of that dompany knew that Sandler had purchased lumber for it from the Friend Company. If such purchases exceeded his authority, it was their duty as directors to renounce the transaction in behalf of their company and failure to do so indicates ratification. Thayer v. White, 12 Metc. 343;Brigham v. Peters, 1 Gray, 139, 147;Lajoie v. Milliken, 242 Mass. 508, 525, 526, 136 N. E. 419;Boice-Perrine Co. v. Keeley, 243 Mass. 327, 330, 331, 137 N. E. 731.

There was no error in the charge to the jury in respect to ostensible authority of Sandler to act for the Armstrong Company. In simple language capable of being easily understood the controlling principles of law were stated with sufficient accuracy. It is not necessary to go over it in detail. It need be said only that no reversible error is disclosed.

2. In the second case the judge directed a verdict in favor of the Armstrong Company against the Friend Company. No exception was saved. The Friend Company seasonably filed a motion for a new trial on the grounds that the verdict was (a) against the evidence and (b) against the weight of the evidence. It also filed a motion to set aside the verdict. There was failure to comply with Superior Court Rule 48 [1923] in that no copy of the motion was delivered or mailed to the adverse counsel on the day on which it was filed. Six days later such copy was so mailed. Motion was made to extend the time for the giving of such notice. This motion was granted. In this there was no error. It must be assumed that sufficient cause for granting it was proved to satisfy the mind of the judge. Whitney v. Hunt-Spiller Manuf. Corp., 218 Mass. 318, 105 N. E. 1054;Boston Morris Plan Co. v. Barrett (Mass.) 172 N. E. 603.

The judge filed a statement in these words so far as material: ‘* * * I allow the defendant's motion for a new trial and to set aside the verdict. * * * My reasons * * * are as follows: * * * It was admitted that the defendant owed the amount of the verdict. It appears, however, from undisputed evidence, that the verdict in the cross-suit for the Friend Lumber Company was for a balance due from the Armstrong Company after making allowance for the amount of the verdict against the Friend Company. It would be a manifest injustice to permit the verdict which was ordered by consent of parties to stand and...