Marquandt v. Young Women's Christian Ass'n

• Decision Date: 14 February 1933
• Citation: 184 N.E. 287,282 Mass. 28
• Parties: MARQUANDT v. YOUNG WOMEN'S CHRISTIAN ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 28

184 N.E. 287

MARQUANDT

v.YOUNG WOMEN'S CHRISTIAN ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 14, 1933.

Report from Superior Court, Suffolk County; Nelson P. Brown, Judge.

Action by Emma T. Marquandt against the Young Women's Christian Association. On report from the superior court after directed verdict for defendant.

Judgment for plaintiff.

J. B. O'Hare, of Boston, for plaintiff.

J. D. Graham and G. B. Rittenburg, both of Boston, for defendant.

LUMMUS, J.

Answering an advertisement offering second-hand laundry machinery for sale, the plaintiff's agent went to the defendant's institution on March 27, 1931, and saw one Todd, the engineer in charge of the operation of the defendant's laundry. The plaintiff's agent offered $200 for a mangle and copper soap box. Todd said that he would telephone to find out whether that was all right. Leaving the plaintiff's agent, he telephoned to a Miss Farwell, who was chairman of a committee appointed by the defendant to sell the machinery and ‘had the position of disposing of it.’ Todd returned to the plaintiff's agent, saying that ‘She accepted your bid.’ Todd took the plaintiff's check for $25 as a deposit. On April 7, 1931, without further communication between the parties, the defendant sold all the machinery to a third person, and shortly afterwards returned the plaintiff's check by mail. The plaintiff brought this action for breach of contract. The only evidence of what was said by Miss Farwell to Todd over the telephone came from them. Both were called as witnesses by the defendant and testified that Miss Farwell told Todd to sell the mangle and copper soap box for $200 on the condition that they be paid for and removed on or before April 6, 1931. After the jury had returned a verdict for the plaintiff, the trial judge ordered a verdict for the defendant, and reported the case upon the stipulation that if the direction of the verdict was wrong, judgment shall be entered for the plaintiff for $250.

The point argued by the defendant is that there was no evidence of Todd's authority to make the contract upon which the plaintiff relies. This case does not enter any debatable field of the classification of agents as general and special. Mechem, Agency (2d Ed.) §§ 59-69, 730-742; Huffout, Agency (2d Ed.) § 104. Todd's conduct made clear to the plaintiff's agent that he was not entrusted with any discretion in the sale of the machinery, but was merely carrying out the orders of another. He was known to be a ‘special agent’ of a most restricted kind. The familiar doctrine that one who deals with an agent is not affected by private instructions limiting his apparent authority, but as to him the ostensible powers of the agent are the real powers (Hale v. Texas Co., 264 Mass. 246, 162 N. E. 354;Simons v. Northeastern Finance Corp., 271 Mass. 285, 171 N. E. 643;Bascombe v. Inferrera, 271 Mass. 296, 171 N. E. 435;Byrne v. Massasoit Packing Co., 137 Mass. 313), has little or no application to such an agent. Green v. Star Fire Ins. Co., 190 Mass. 586, 595, 596, 77 N. E. 649;Ferran v. Boston Elevated Railway Co., 249 Mass. 212, 215, 143 N. E. 823. Todd had no ostensible powers, for everything pointed to the fact that he was ‘acting under special instructions' (Markey v. Mutual Benefit Life Ins. Co., 103 Mass. 78, 93) which constituted limitations of his authority and not mere private directions or advice upon a subject apparently left somewhat to his judgment. See Hatch v. Taylor, 10 N. H. 538;Towle v. Leavitt, 23 N. H. 360, 55 Am. Dec. 195;Bryant v. Moore, 26 Me. 84, 45 Am. Dec. 96. Under these circumstances, the plaintiff had to discover Todd's real powers, for beyond them the defendant could not be bound. Snow v. Perry, 9 Pick. 539;Lobdell v. Baker, 1 Metc. 193, 201-203,35 Am. Dec. 358;Harrison v. City Fire Ins. Co., 9 Allen, 231, 85 Am. Dec. 751;Harrigan v. Dodge, 216 Mass. 461, 103 N. E. 919;Ferran v. Boston Elevated Railway Co., 249 Mass. 212, 215, 143 N. E. 823, and cases cited; American Railway Express Co. v. Mohawk Dairy Co., 250 Mass. 1, 11, 144 N. E. 721, 35 A. L. R. 14. See, also, Mussey v. Beecher, 3 Cush. 511.

If the entire testimony of Miss Farwell and Todd as to Todd's authority should be believed, his authority to make the contract upon which the plaintiff relies would be negatived. If that entire testimony should be rejected, the plaintiff would be left without any affirmative evidence of Todd's authority. Boice-Perrine Co. v. Kelley, 243 Mass. 327, 330, 137 N. E. 731;Rosenberg v. Karas, 259 Mass. 568, 156 N. E. 711. The only way in which the jury could find for the plaintiff was to divide the testimony of Miss Farwell and Todd as to Todd's authority, believing that Todd was authorized to sell for $200, and disbelieving the evidence of the condition that the price must be paid and the machinery removed on or before April 6, 1931. Whatever might have been the rule had this uncontradicted testimony been introduced by the plaintiff as a part of her case (...