Thalin v. Friden Calculating Mach. Co.

• Decision Date: 07 November 1958
• Citation: 153 N.E.2d 658,338 Mass. 67
• Parties: Robert E. THALIN v. FRIDEN CALCULATING MACHINE CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 658

153 N.E.2d 658

338 Mass. 67

Robert E. THALIN v. FRIDEN CALCULATING MACHINE CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 8, 1958.

Decided Nov. 7, 1958.

Richard J. Bennett, Somerville, Adolph Kissell, Dorchester, for plaintiff.

George N. Hurd, Jr., Boston, James W. Noonan, Brookline, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.

CUTTER, Justice.

This is an action of contract based upon alleged breaches of a contract, said to have been made on January 12, 1952, of employment of the plaintiff by the defendant (hereinafter called Friden) as salesman in a specified territory. At the trial an auditor's report and other evidence were before the jury, who found for the defendant. The bill of exceptions purports to present for consideration exceptions relating to evidence, to a comment of the judge, to the denial of a request for a ruling, and to a portion of the judge's charge.

The plaintiff's somewhat confused testimony was to the effect (1) that on January 12, 1952, he entered into an oral contract with one Davis and one Bergstrom for permanent employment as salesman of Friden calculating machines in an exclusive sales territory in southeastern Massachusetts that would yield him, on a salary of $60 per week plus a ten per cent commission, at least $6,000 a year net after expenses which the plaintiff was to pay; (2) that methods of conducting business and the sign 'Friden Calculating Machine Agency' in the Boston office occupied by Davis and Bergstrom led him to believe that he was being employed by Friden; (3) that adjustments and changes were made in his territory without his consent from time to time; (4) that he never did earn $6,000 a year net; and (5) that he was damaged by the breach of various assurances made to him at the time of signing a written contract of employment with Friden on September 9, 1953. There was other testimony that, at this time, the plaintiff's compensation was placed upon a twenty per cent commission basis. The written contract of September 9, 1953, was terminable by either party on notice and required the plaintiff to 'devote his time * * * to duties as may be assigned to him by' Friden.

The defendant, among other things, contended at the trial (1) that any hiring of the plaintiff in January, 1952, was by Bergstrom doing business under the name of 'Friden Calculating Machine Agency' as an independent contractor; and (2) that Bergstrom lacked authority, either actual or apparent, to hire the plaintiff as Friden's employee.

1. The trial judge excluded a question to the plaintiff as to his state of mind at the time he sought employment in his conference in January, 1952, with Davis and Bergstrom, but told counsel that the witness could be brought back to state 'his understanding of the' oral agreement then made, if any question 'of agency * * * of Davis or Bergstrom' should be raised. The plaintiff did not reoffer the evidence. It was within the discretion of the trial judge to exclude the evidence provisionally and to place the burden on the plaintiff to reoffer the excluded evidence after it had been shown to be relevant. Donahue v. Kenney, 330 Mass. 9, 11-12, 110 N.E.2d 846.

2. The plaintiff claimed exception (a) to the refusal of the trial judge to strike out a portion of the auditor's report describing the 'franchise' agreement under which Bergstrom was granted by Friden 'the * * * exclusive franchise for Friden * * * machines' in the Boston area and most of southern Massachusetts, and (b) to the admission of the franchise agreement in evidence. The agreement, of course, tended to show the actual arrangement between Friden and Bergstrom, but its contents were not known to the plaintiff and were not mentioned to him by Davis or Bergstrom.

The plaintiff in January, 1952, dealt in respect of employment only with Davis and Bergstrom. The plaintiff thus had the burden of showing that the alleged employment of the plaintiff for life, testified to by the plaintiff, was within some actual authority given to Davis and Bergstrom by Friden or that Friden had so conducted itself as to give them apparent authority to employ the plaintiff for life, notwithstanding the facts that rarely (a) would such authority be expressly given to any corporate officer even in a specific case, or (b) would circumstances exist which would give rise to apparent authority, of even a principal corporate officer, to employ another for life. Braden v. Trustees of Phillips Academy, 321 Mass. 53, 55, 71 N.E.2d 765. Simonelli v. Boston Housing Authy., 334 Mass. 438, 440-441, 137 N.E.2d 670. See Chesapeake & Potomac Telephone Co. of Baltimore City v. Murray, 198 Md. 526, 531-532, 84 A.2d 870, and note 28 A.L.R.2d 929, 932.

The plaintiff contends, nevertheless, that it was error to permit proof of the franchise agreement, which was not disclosed to him, and that his contention, that Friden had clothed Davis and Bergstrom with apparent authority (Restatement 2d: Agency, §§ 8, 8A, 27, 64) to act for Friden, made irrelevant evidence of the actual authority, if any, given to them. On the present record any evidence that Friden held out Davis and Bergstrom at all as agents was inconclusive, if not entirely inadequate (see Simonelli v. Boston Housing Authy., 334 Mass. 438, 440-441, 137 N.E.2d 670), and left it uncertain whether the agency, if one existed at all, was special or general. See Restatement 2d: Agency, §§ 161, 161A. See also Cauman v. American Credit Indem. Co., 229 Mass. 278, 283, 118 N.E. 259; Desrochers Mfg. Co. v. Brady, 299 Mass. 269, 272, 12 N.E.2d 861; Masse v. Smitherman Cotton Mills, Inc., 333 Mass. 374, 378-379, 130 N.E.2d 876. Cf. Neilson v. Malcolm Kenneth Co., 303 Mass. 437, 440, 22 N.E.2d 20. Certainly there was no such evidence of general agency, or of present or past holding out, as in cases like ...