McKeen v. Providence County Sav. Bank

• Decision Date: 18 December 1902
• Citation: 54 A. 49,24 R.I. 542
• Parties: McKEEN v. PROVIDENCE COUNTY SAV. BANK.
• Court: Rhode Island Supreme Court

54 A. 49

24 R.I. 542

McKEEN

v. PROVIDENCE COUNTY SAV. BANK.

Supreme Court of Rhode Island.

Dec. 18, 1902.

Assumpsit by Thomas J. McKeen against the Providence County Savings Bank. On defendant's petition for new trial. Denied.

Argued before STINESS, C. J., and ROGERS and DOUGLAS, JJ.

John W. Hogan and Philip S. Knauer, for plaintiff.

John A. Tillinghast, for defendant.

DOUGLAS, J. This action was brought to recover for certain plumbing work done by the plaintiff on several buildings owned by the defendant. There is no disagreement about the performance of the work or the price. The only question is whether the defendant is liable to pay for it. Both parties agree that the work was let to the plaintiff, under contract, through one J. D. Furlong, acting as agent for the defendant: that the plaintiff knew that Furlong was acting in this matter as agent; and that the defendant was his principal. The plaintiff claims that he charged the account to defendant as principal, and treated Furlong only as agent for defendant. The defendant claims—First, that credit was given by the plaintiff to Furlong alone; secondly, that the defendant settled its account with Furlong, and credited him with the payment of this bill, and the plaintiff, knowing the relations of the parties, has so conducted himself as to estop him from claiming payment of the defendant; and, lastly, that Furlong has paid the plaintiff this bill. The jury returned a verdict for the plaintiff for $471.81, the amount claimed, and also found specially "that at the time the work in question was done the plaintiff did not give credit exclusively to Furlong." The defendant prays for a new trial on the grounds: (1) that the verdict is against the law and the evidence; (2) that certain evidence tending to show payment by Furlong was erroneously excluded by the court; (3) that the verdict is excessive. The latter ground is not insisted upon at this hearing.

1. The first question for consideration is one of fact, viz., whether the plaintiff gave credit to the defendant or to the defendant's agent exclusively. Upon a consideration of all the circumstances of the case, we cannot say certainly that the jury erred in deciding this question. It was properly left to them to decide. Whitney v. Wyman, 101 U. S. 392, 25 L. Ed. 1050; Meeker v. Ciaghorn, 44 N. Y. 349; Hovey v. Pitcher, 13 Mo. 191. It appears that Furlong was the agent of several property owners, and was in the habit of attending to work done upon their several estates, and in this capacity engaged the plaintiff to do the work in question. The plaintiff knew that the defendant was the owner of the premises, and supposed, as was the fact, that Furlong was its agent, duly authorized to procure the work to be done. He testifies that he intended to hold the defendant, and not Furlong, as his debtor. Against this statement is the evidence of Furlong that the plaintiff gave credit to him, and not to the defendant, and the fact that in the plaintiff's journal, which we consider to be shown by the book itself, he first charged the items of the work to J. D. Furlong & Co., and afterwards added to the entry the abbreviation "Agts." and interlined the words "Prov. County Savings Bank"; also, that he made persistent efforts to collect the bill of Furlong, and only presented it to the defendant when these efforts proved fruitless. All these circumstances combine to throw great doubt upon the plaintiff's claim; but we cannot say that they conclusively overthrow his testimony, corroborated by the presumption that he would naturally retain his valid claim against a perfectly responsible debtor, rather than abandon his right and take the agent as his debtor alone.

The changes in his book were evidently an afterthought, and very seriously impugn his veracity; but the book amounts to little more than a memorandum, and he may have considered it proper enough to correct the entries, which were carelessly made in the first instance. If he had thus explained his action, he would have been more worthy of Credence than when he testifies that the additions were made when the entries were. Still, omitting the amendments entirely, we only have the fact that the book account stands charged against the agent, and not against the principal; and this is not conclusive of the fact in issue. It is said by Earl, J., in Meeker v. Claghorn, supra: "The evidence should be quite clear that the vendors gave exclusive credit to the agent of known principals, before we can hold the principals exempt from liability. In all cases where the principals seek exemption upon the ground that the credit was exclusively given to their agents, this should clearly appear, and they have the affirmative to show it; the natural presumption being in all cases that credit is given to the principal, rather than to the agent. It is sufficient to say, upon this branch of the case, that there is no conclusive evidence that the credit was given by the vendors exclusively to the agent, and that they intended to look to him solely for their pay. It is true that upon the ledger and daybook of the vendors the articles were charged to Shell, and, while this furnishes strong evidence that they were furnished upon his credit, it does not show it conclusively. The plaintiff gave some explanation tending to weaken the effect of this evidence, and its weight, under all the circumstances of the case, was for the referee." To the same effect see Guest v. Burlington Opera House Company, 74 Iowa, 457, 38 N. W. 158.

2. The next claim of the defendant is that the plaintiff ought not to recover in this action, because his delay in presenting his bill induced the defendant to credit the agent with the amount of it in the settlement of his account. As a matter of fact the defendant received of its agent, as a voucher to his account, a bill for this work receipted by the agent in the name of the plaintiff. Without inspection of the voucher the sum was credited to him, and the balance due from him so much reduced. It does not appear that any actual settlement, by the payment of this balance to the defendant, has ever taken place; and, if so, it is clear that, as the defendant is not bound by the statement of balances predicated upon the misrepresentation of the agent, it has only been drawn into a paper settlement, which can be revoked at its pleasure, and has suffered no real damage. But, if the settlement had been made by the payment of the balance found, we do not see how the mere delay of the plaintiff to require payment can bar his action now. What misled the defendant was the misrepresentation of its own agent, for which the plaintiff is not responsible. It is not true that the defendant thought it was not the debtor, but that it believed the statement of Furlong that the bill was paid.

The cases cited by defendant, do not support the proposition it contends for. Kymer v. Suwercropp, 1 Camp. 109, holds that an undisclosed principal who has settled with his broker is liable to a vendor of goods bought by the broker, if the vendor makes demand on the principal in due season, or, in the case cited, before the stipulated day of payment Smethurst v. Mitchell, 1 El. & El. 622, was likewise the case of an undisclosed principal whom the court held might be made liable if the...