Torpey v. Interstate Equipment Leasing Corp., Inc., 84-1919

• Citation: 760 F.2d 364
• Decision Date: 01 April 1985
• Docket Number: No. 84-1919,84-1919
• Parties: Dennis TORPEY, et al., Plaintiffs, v. INTERSTATE EQUIPMENT LEASING CORPORATION, INC., Third-Party Plaintiff, Appellant, v. GEORGE A. CALDWELL, CO., INC., Third-Party Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 364

760 F.2d 364

Dennis TORPEY, et al., Plaintiffs, v. INTERSTATE EQUIPMENT LEASING CORPORATION, INC., Third-Party Plaintiff, Appellant, v. GEORGE A. CALDWELL, CO., INC., Third-Party Defendant, Appellee.

No. 84-1919.

United States Court of Appeals, First Circuit.

Heard April 1, 1985.

Decided April 22, 1985.

Stephen M.A. Woodworth, Boston, Mass., with whom Francis J. Lynch, III, and Francis J. Lynch, J.D., P.C., Brockton, Mass., were on brief, for Interstate Equipment Leasing Co., Inc.

Gerald J. Caruso, Boston, Mass., with whom Cuddy, Lynch, Sikora & Cunningham, Boston, Mass., Paul F. Wynn, Marylin A. Beck, and Wynn & Wynn, Taunton, Mass., were on brief, for George A. Caldwell Co., Inc.

Before COFFIN, Circuit Judge, ALDRICH and ROSENN ^*, Senior Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

This is an appeal from the granting of a motion for summary judgment by a third party defendant. We reverse.

Dennis Torpey, an employee of appellee George A. Caldwell Co., Inc., was injured in the course of his employment because of an allegedly defective "air bag" supplied to it by appellant Interstate Equipment Leasing Co. Caldwell had acquired the bag under the following circumstances. Not having any, but needing one for a brief interval, Lash, president of Caldwell, testified by deposition that he inquired of a customer Seaward Construction Co., if it had one to lend. Seaward said that its subsidiary, Interstate, would have one available to rent, but the terms of the lease or the rental were not discussed.

Lash sent a blue collar worker, Palombo, with the company truck, to pick up the bag. On delivery, Palombo signed what he described in his deposition as a rental slip, receiving a copy, which he gave to Lash. Lash testified he did not read it, but put it on his desk, "saving it to go back with the bag had it went back."

Following the accident allegedly caused by the air bag, Torpey sued Interstate, and others. Interstate filed a third party complaint against Caldwell on the basis of an indemnity agreement printed on the back of the paper Palombo had signed. The district court granted Caldwell's motion for summary judgment, stating that as matter of law Palombo had no authority to enter into an indemnity agreement. With respect to Interstate's claim that Lash ratified the, unauthorized, agreement, the court stated,

"Interstate's contention that Caldwell ratified the agreement because Lash received the form, placed it on his desk, and took no action, ignores the settled law that a party alleged to have ratified an agreement must have knowledge of all material facts. Perkins v. Rich, 11 Mass.App.Ct. 317, 415 N.E.2d 895 (1981), aff'd, 385 Mass. 1001, 429 N.E.2d 1135 (1982). There is no evidence that anyone at Caldwell knew of the indemnity provision contained on the form."

We pass the question of the court's ruling as to Palombo's lack of actual or apparent authority, it being possibly correct, and, in any event, is inconsequential in view of our ruling on the issue of ratification to which we now turn.

The document in question was a printed form on a piece of paper 8" X 10". At the top of what was apparently the front page there appeared,

"Subject to prices, terms and conditions set forth on the front and reverse side of this agreement."

At the bottom of the page appeared the following.

Accepted 11/18/79 19__

Purchaser/Lessee____________

By s/J Palombo

"The Customer hereby acknowledges receipt of an exact copy of this order, and acknowledges that both sides have been read and that all conditions, stipulations and provisions applicable to this transaction on both sides of this order are hereby agreed to, that no verbal agreements are binding and that this order is not subject to cancellation."

On the reverse were a number of printed paragraphs, each introduced with a descriptive word in capital letters. The one presently at issue read,

LIABILITY: Lessee covenants and agrees to keep the Lessor harmless and free from any and all liability arising out of the use, maintenance and/or delivery of said equipment, and further covenants and agrees to pay Lessor in full for any and all damages caused to, or suffered by, said equipment, from time of departure from Lessor's warehouse to time of return to Lessor's warehouse. The liability assured by this clause should be insured and the Lessee agrees to furnish the Lessor with a Certificate of Insurance evidencing such insurance.

We hold it error to have granted summary judgment. While Lash's final quoted remark suggests he thought it a release, in saying there was "no evidence that anyone at...