W.A. Robinson, Inc. v. Burke

• Decision Date: 31 July 1951
• Citation: 327 Mass. 670,100 N.E.2d 366
• Parties: W. A. ROBINSON, Inc. v. BURKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 366

100 N.E.2d 366

327 Mass. 670

W. A. ROBINSON, Inc. v. BURKE.

Supreme Judicial Court of Massachusetts, Essex.

Argued Feb. 5, 1951.

Decided July 31, 1951.

C. C. Worth, Boston, for plaintiff.

C. L. Arnold, Lynn, for defendant.

Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS, and COUNIHAN, JJ.

WILLIAMS, Justice.

The declaration in this action of contract alleges that 'in consideration that the plaintiff would not press for immediate collection of the entire balance' owed to the plaintiff by Trawler Leretha, Inc., the defendant agreed in writing to pay this balance; that he has paid $1,250; and that the additional amount which he should have paid and now owes the plaintiff under the said agreement is $2,644.38. A copy of the writing declared on is annexed to the declaration and reads as follows.

'June 28, 1946

'Edward C. Park, Esq.,

'Withington, Cross, Park & McCann

'Tremont Building

'Boston, 8, Mass.

'Dear Sir:

'Re: W. A. Robinson, Inc.

vs. Trawler Leretha, Inc.

'As agent of Trawler Leretha, Inc. I have been directed by its president, Esau Levine, to pay to you out of the owner's net share of the proceeds of each trip of the said vessel the sum of Two Hundred Fifty Dollars ($250) or 50% of the owner's net proceeds, whichever is greater, and that such payments are to be made until the satisfaction of judgment agreed upon in this matter in the sum of $6,500. This will notify you that I agree and promise to make such payments.

'/s/ John J. Burke, Jr.'

The answer is a general denial and payment. The defendant filed no specific denial of the genuineness of the signature and a demand for its proof under the provisions of G.L. (Ter.Ed.) c. 231, § 29. There was a verdict for the plaintiff. The defendant's bill of exceptions contains exceptions to the admission and exclusion of evidence, to the denial of requests for instructions and of his motion for a directed verdict, and to portions of the judge's charge.

There was evidence that the defendant was manager and treasurer of Sherman B. Ruth, Inc., a corporation engaged in the business of outfitting fishing vessels. Since 1944 it had outfitted a certain trawler named Leretha, which was owned by Trawler Leretha, Inc. The defendant took over the management of this boat in May, 1946. The proceeds of each fishing trip were turned over to the bookkeeper of Sherman B. Ruth, Inc., who after paying the expenses of the trip and dividing a part of the profits on a percentage basis betwen crew and captain paid over the balance to the owner. For this service no compensation was received.

Some time in June, 1946, the plaintiff brought an action in the Essex Superior Court against the owner of the trawler on a claim for labor and materials and on June 17 'trusteed' the defendant. 'Just prior to June 28' the defendant talked over the telephone 'with a man who said he was Edward C. Park and had quite a little talk, several times, concerning this claim.' On July 3 an agreement for judgment for the plaintiff in the sum of $6,500 was filed in that action. Execution issued on July 8, and demand for payment thereunder was made on February 25, 1947, at which time five payments of $250 each had been received by the plaintiff in partial satisfaction of its judgment, one having been made by Trawler Leretha, Inc., before the agreement for judgment was filed and four thereafter by the defendant.

The trawler was sold by the United States Marshal in March, 1947, and on April 9 a member of the firm of lawyers representing the plaintiff was appointed receiver of the corporation which owned the boat. He received from the accountant of the corporation certain papers including ledger sheets which tended to show that fifty per cent of the owner's net proceeds of several of the trips made by the trawler exceeded $250. It is the contention of the plaintiff that the defendant has failed to pay the full amount to which the plaintiff is entitled under its alleged contract.

The letter dated June 28, 1946, was admitted in evidence subject to the exception of the defendant. It was, in our opinion, an 'instrument declared on' and the signature 'John J. Burke, Jr.' Must be 'taken as admitted' to be the signature of the defendant under the provisions of G.L. (Ter.Ed.) c. 231, § 29. It was thus authenticated as a letter of the defendant. Its delivery to the named addressee Mr. Park, who was the attorney for the plaintiff, was inferable from the fact that it was produced in court by the plaintiff. Ward v. Lewis, 4 Pick. 518; Whitaker v. Salisbury, 15 Pick. 534; Valentine v. Wheeler, 116 Mass. 478; Jones v. New York Life Ins. Co., 168 Mass. 245, 47 N.E. 92; Newell v. Rosenberg, 275 Mass. 455, 461, 176 N.E. 616. There was no error in its admission.

It was a letter whereby the writer, although reciting that he was acting as agent, promised personally to make to the attorney for the plaintiff the payments which he had been directed by his principal to make. There is no rule of law which precludes an agent, who has been authorized by his principal to deliver the property of the principal to a third person, from personally contracting with that third person to deliver the property. It is said in the Restatement: Agency, § 342, 'An agent who fails to deliver things given to him by his principal for another person is not thereby liable to such person, unless: (a) the agent, by a contract with the other * * * has agreed so to deliver them.' In the accompanying comment it is further stated, 'At any time, of course, the agent may contract with the other to hold on his account or to deliver the thing to him.' Also in Mechem on Agency (2d Ed.) § 1447, it is said, 'In order to create a liability against the agent, it is necessary to show that he has in some way, in dealings with such third person, so recognized and assented to the appropriation of the money to the latter as to create a privity between them.' In our opinion the promise of the defendant was one which would ripen into a contract binding on him personally provided that there was consideration for the promise.

There was evidence that the plaintiff furnished consideration by forbearing to levy on its execution. The letter of the defendant containing his promise was dated June 28, 1946. The execution was issued on July 8, 1946. No demand for payment thereunder was made until February 25, 1947, and apparently no levy until some time thereafter. To supplement these facts there was evidence of the reason for this forbearance by the plaintiff to demand and levy contained in a letter of Mr. Park to the defendant dated January 18, 1947, a copy of which was introduced by the plaintiff. The letter read, 'I have not received replies to my letters with reference to the Trawler Leretha, and have had no payments on account for a long time. This is, of course, not in accordance with the agreement upon which I undertook not to make a levy on the execution against the Trawler Leretha, Inc.' At the time of the admission of the letter the judge instructed the jury to disregard the word 'agreement' as being self serving. Omitting this word, the remainder of the letter, to which it appears there was no objection, contained a statement by the plaintiff's attorney that 'I undertook not to make a levy on the execution.' The statement, although hearsay had probative value and was evidence from which the jury could find that the actual forbearance was in consideration of the defendant's promise.

There was undisputed evidence...