Roosevelt v. Doherty

• Decision Date: 07 September 1880
• Citation: Roosevelt v. Doherty, 129 Mass. 301 (Mass. 1880)
• Parties: James Roosevelt v. Michael Doherty
• Court: Supreme Judicial Court of Massachusetts

129 Mass. 301

James Roosevelt v. Michael Doherty

Supreme Court of Massachusetts

September 7, 1880

Argued November 18, 1878

Suffolk. Contract to recover the price of plate glass sold and delivered to the defendant. Trial in the Superior Court before Pitman, J., who directed a verdict for the defendant and reported the case for the determination of this court. If the plaintiff could maintain the action, a new trial was to be ordered; otherwise, judgment on the verdict. The facts appear in the opinion.

Judgment on the verdict.

R. Gray & H. W. Swift, for the plaintiff.

F. S Hesseltine, for the defendant.

Endicott J. Colt & Morton, JJ., absent.

OPINION

Endicott

It appears from the report that the firm of Hills, Turner & Harmon were importers of and dealers in window and plate glass, and they made a contract in writing with the defendant to furnish the glass for a building, which he was about to erect in Boston, according to the specifications furnished by the architect, for the gross sum of $ 688 in cash. The contract describes the quality and dimensions of the glass to be furnished, and the number of lights of each quality. Hills, Turner & Harmon were the selling agents for the plaintiff, in Boston, for plate glass, and the first four items of glass to be furnished, as specified in the contract, were plate glass, and belonged to the plaintiff, having been consigned to the firm for sale. The remainder of the glass was furnished by the firm. The defendant had no knowledge that any of the glass belonged to the plaintiff.

We can have no doubt that, as between the firm and the defendant, this was an entire contract; it was to furnish the glass for the building for a specified sum of money. There was no price named in the contract for the several kinds and qualities of glass to be furnished; and it is immaterial that the quality of the several kinds of glass to be furnished was specified. The consideration being entire, there could be no distinct apportion ment of the consideration between the different qualities of glass furnished. There were not two contracts, one for plate glass, and the other for glass of different qualities, but one contract for all the glass thus furnished to the building. Clark v. Baker, 5 Met. 452. The firm could not recover for any portion of the glass, but only on the entire contract, by which all the glass passed to the defendant. And the question to be considered here is, whether the plaintiff, as an undisclosed principal, can maintain an action against the defendant to recover the value of the plate glass belonging to him, included in the entire contract. We are of opinion that he cannot.

It is too well settled to require the citation of many authorities, that an undisclosed principal, whose goods are sold by a factor, may sue the purchaser for the price; and where the contract of sale is in writing, and made in the name of the factor, he may bring an action upon it. A sale by his agent is a sale by him. Lerned v. Johns, 9 Allen 419, and cases cited.

In the case at bar, it does not appear that any instructions were given by the plaintiff in regard to the price, manner, or terms of sale of his goods. The factors therefore had the right to sell in such manner as would best promote the interests of their principal; and it is to be presumed that the plaintiff understood that they would sell according to the usual course of dealing in Boston, when goods are consigned to a factor for sale Dwight v. Whitney, 15 Pick. 179. That a factor may sell on credit, and take a note in his own name from the purchaser, and if he uses due diligence he is not responsible, in case of loss by reason of the purchaser's failure, was settled in an early case. A factor also may, and often does, sell the goods of different principals in one sale, and has authority to take a note for the whole sum from the purchaser, and may hold the note for the benefit of his principals. Goodenow v. Tyler, 7 Mass. 36. Chesterfield Manuf. Co. v. Dehon, 5 Pick. 7. West Boylston Manuf. Co. v. Searle, 15 Pick. 225. Hapgood v. Batcheller, 4 Met. 573. Hamilton v. Cunningham, 2 Brock. 350. Corlies v. Cumming, 6 Cowen 181. Beawes Lex Merc. (5th ed.) 45.

In West Boylston Manuf. Co. v. Searle, ubi supra, a factor sold the goods of two consignors in one sale, and took the note of the purchaser; and it was held that it operated as payment; that the factor had power to release it; and, although he afterwards indorsed it to one of the consignors, that no action could be maintained on the note by the indorsee; and the court said, "The factors having an unquestioned authority to take a negotiable note in their own name, and thereupon to cancel and discharge the simple contract debt, the note was rightly taken, and whether it was rightly held and retained by the factors as their own, or otherwise appropriated, was a question merely between them and their employers."

So a factor may sell his own goods with those of his principal and take a note which includes the amount due for both, as in Hapgood v. Batcheller, 4 Met. 573. In that case it appears that the factors had sold goods of the plaintiff's and some of their own in one sale, and had taken a note...