Harrigan v. Dodge

• Decision Date: 14 January 1914
• Citation: 216 Mass. 461,103 N.E. 919
• Parties: HARRIGAN v. DODGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 461

103 N.E. 919

HARRIGAN v. DODGE et al.

Supreme Judicial Court of Massachusetts, Essex.

January 14, 1914

COUNSEL

Arthur Berenson and Garland & Berenson, all of Boston, for appellant.

F. L Evans, of Salem, and Alfred W. Putnam, of Boston, for respondents Dodge.

Edward J. Carney, of Salem, for respondent McIntire.

OPINION

RUGG C.J.

This is a suit in equity to compel the defendants to convey real estate to the plaintiff. The evidence is not reported, and no objections or exceptions were filed to the master's report. The only question presented is whether the decree dismissing the bill was warranted on the pleadings and the report. Huntress v. Hanley, 195 Mass. 236, 237, 80 N.E. 946. No point now is made as to the statute of frauds for the averments and proof absent in Harrigan v Dodge, 200 Mass. 357, 86 N.E. 780, have been supplied.

A real estate agent or broker is not an agent of general powers. As a rule he has no authority to bind his principal beyond the terms of the specific authority conferred upon him by the agreement for employment. Commonly he is, in the strict sense, a special agent for a single object, and has no power to bind his principal beyond the limitations conferred by the precise terms of his contract of agency. This doctrine has been more frequently applied in this commonwealth to merchandise brokers than to real estate agents. Coddington v. Goddard, 16 Gray, 436, 445; Stollenwerck v. Thacher, 115 Mass. 224, 227. But there is no reason for a distinction in this respect between an agent or broker to sell merchandise and one to sell real estate. The relation between a landowner and the real estate agent or broker naturally imports a single transaction for a definite and strictly limited purpose, with circumscribed instructions within which conduct must be rigorously confined. No hardship is wrought either upon the broker or those with whom he deals, by adherence to this rule. The very nature of the employment is such that a third party has an implied notice that he is dealing with a special agent of restricted authority, and hence he must ascertian at his peril the bounds of that authority. This precise question has not been much discussed in this commonwealth (see Cohen v. Jackson, 210 Mass. 328, 96 N.E. 669), but decisions in other jurisdictions are numerous. ^[1] Undoubtedly certain incidental powers may flow even from such an agency, but it cannot extend to substantial variations from the terms of the authority given.

The master has found that the defendants placed the real estate in question in the hands of a real estate agent for sale, but with the limitation upon his authority that no sale should be made except to a purchaser agreeable to Mrs. Dodge, the widow of the testator, through whom the defendants acquired title. There is no explicit finding that the agent even by fraudulent means procured the assent of Mrs. Dodge to a sale to the plaintiff. The paragraph in the report dealing with this subject is in these words:

'About the middle of December, 1906, he found a purchaser in the person of the petitioner, and on December 15th we went to the home of Mrs. Dodge, and told her that he could sell the property to the petitioner, if she would consent. Allen says she then and there consented to the sale. The petitioner, Harrigan, had been convicted of illicit liquor selling, and it was notorious in the town of Danvers that he and the house in which he lived were constantly under the eyes of the police, and his house had been raided more than once. This was well known to Mr. Allen, but in his anxiety to make a sale, he did not frankly tell Mrs. Dodge who the purchaser was.'

This is equivocal at most. It certainly does not go to the extent of a finding of assent on the part of Mrs. Dodge. Allen's testimony that she assented may have been disbelieved by the master. The finding that within a few days after this interview, Mrs. Dodge, having in the meantime made inquiries 'wrote Allen that she objected to any sale to the petitioner,' confirms the inference that the master did not intend to make a finding that she ever assented. This does not indicate the withdrawal of an assent once given, but the decision for the...