Wilson v. Atwood

Decision Date01 May 1923
Citation122 A. 797
PartiesWILSON v. ATWOOD.
CourtNew Hampshire Supreme Court

Transferred from Superior Court, Grafton County; Sawyer, Judge.

Assumpsit by Daniel W. Wilson against Nancy J. Atwood. Transferred on defendant's exceptions. Overruled in part, and sustained in part, and case discharged.

Assumpsit, to recover an agreed commission for procuring a customer for the purchase of a hotel at Bethlehem. On the facts found by a referee, the court returned a verdict for the plaintiff. Both sides moved for judgment on the report. The defendant's motion was denied, subject to exception. She also excepted to the verdict.

The referee found the following facts: One Reiss desired to buy the Howard House and interviewed the plaintiff to see if he could bring about a purchase. The plaintiff had several talks with Reginald Atwood, who was a son of the defendant, relative to making a sale of the property, and Reginald agreed to pay the plaintiff $500 if he should find a purchaser. Later the plaintiff informed Reginald that Reiss wished to buy the property, and told Reiss that the defendant would sell. Reginald had no interest in the property. There was no evidence that he had any authority to act for the defendant, or that he represented to the plaintiff that he had.

The following special findings were also made:

"Defendant never contracted with plaintiff to pay him $500 or any other sum as commission if he would find a purchaser for the Howard House. Reginald Atwood did contract with plaintiff to pay him $500 for his services if he would find a customer for the Howard House. Reginald Atwood was not authorized by defendant to make this trade with plaintiff. Defendant was informed by Reginald of his negotiations with plaintiff and during the negotiations for the purchase of the option stated to Reiss that she had to pay plaintiff five hundred dollars for his services. The plaintiff procured Reiss as a customer for the Howard House. Reiss was willing and able to purchase the property."

The "defendant ratified Reginald's trade, at least so far as to use the statement that she had to get $500 to pay the plaintiff! as an argument why she should receive $22,200 for the option."

Harry L. Heald, of Littleton, for plaintiff.

Harry M. Morse, of Littleton, for defendant.

PEASLEE, J. The case was sent to a referee, who found certain facts, but did not return a general verdict. The verdict for the plaintiff, found by the court from the facts reported by the referee, adds nothing to the plaintiff's case. The right of the plaintiff to a judgment depends upon the sufficiency of the facts found by the referee. Crawford v. Forristall, 57 N. H. 102. If those facts do not establish a right to recover, there would be a judgment for the defendant, unless the case should be recommitted for further findings. It is not the province of the court to add to the findings reported. The trial of the facts having been committed to the referee, the function of the court is merely to apply the law to the facts found. March v. Putney, 56 N. H. 226. It is the practice here to recommit cases in which the referee's report is deficient. Andrews v. Green, 61 N. H. 639; Cutting v. Tappan, 59 N. H. 562; Lord v. Smith, 59 N. H. 593. The defendant's exception to the verdict found by the court is sustained.

The report is incomplete. It does not make it clear whether, when Reginald promised to pay the plaintiff $500, he made the agreement as his own, or whether he undertook to promise on behalf of the defendant. Taken literally, the report means that he made the agreement for himself. If this is true, the plaintiff cannot recover, for it is found that no agency then existed. Where there is no agency and no attempt to act as agent, there is nothing to which the doctrine of ratification can apply. Saltmarsh v. Candia, 51 N. H. 71; 2 C. J. 474.

It also appears from the report that Reiss engaged the plaintiff to act for him in endeavoring to purchase the property. Apparently the plaintiff undertook to act as agent for both parties. If such is the fact, he cannot recover from the defendant, in the absence of proof that she knew of and assented to his acting in such dual capacity. Walker v. Osgood, 98 Mass. 348, 93 Am. Dec. 168; Pearson v. Railroad, 62 N. H. 537, 13 Am. St. Rep. 590.

Assuming that these deficiencies in the plaintiff's case are hereafter supplied, the question of ratification by the defendant will become material.

"Ratification, though it must be evidenced by external demonstrations, is merely an act of the mind." Bayley v. Bryant, 24 Pick. (Mass.) 198, 203.

"Where the facts are in dispute, or where the facts to be deduced from them are such that men may reasonably differ concerning them, the question of ratification or not is for the jury. This is especially true when ratification is sought to be implied from conduct, or deduced from alleged acts of acquiescence." Mech. Agency, § 481.

Upon this issue the referee has failed to make any definite finding. He reports that—

"The defendant ratified Reginald's trade, at least so far as to use the statement that she had to get $500 to pay the plaintiff as an argument why she should receive $22,200."

The defendant's statement was not made to the plaintiff, and is at the most an admission, spoken to one not a party to...

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18 cases
  • NCNB NAT. BANK OF NC v. Bridgewater Steam Power
    • United States
    • U.S. District Court — Western District of North Carolina
    • June 25, 1990
    ...acted in a dual capacity, unless the agent has fully informed his principal and has obtained the principal's consent. Wilson v. Atwood, 81 N.H. 61, 122 A. 797, 798 (1923). The Court carefully has reviewed the evidence introduced at trial and has considered the applicable law. The Court conc......
  • Russo v. Slawsby
    • United States
    • New Hampshire Supreme Court
    • June 4, 1929
    ...A. 484; Morrison v. Hall, 78 N. H. 48, 96 A. 298. "His undertaking was to produce a customer able and willing to buy." Wilson v. Atwood, 81 N. H. 61, 65, 122 A. 797, 799. It is also argued on behalf of the defendants that the duty of the agent is such that he must procure the execution of a......
  • De Rochemont v. Holden
    • United States
    • New Hampshire Supreme Court
    • May 19, 1954
    ...of what the agent has done (Town of Greenland v. Weeks, 49 N.H. 472, 479) and with an intention to adopt his acts. Wilson v. Atwood, 81 N.H. 61, 64, 122 A. 797; Ernshaw v. Roberge, 86 N.H. 451, 454-455, 170 A. 7; See also, Meader v. Inhabitants of Town of West Newbury, 256 Mass. 37, 152 N.E......
  • Fed. Ins. Co. of Hartford v. Sydeman
    • United States
    • New Hampshire Supreme Court
    • January 5, 1927
    ...Additional authorities will be found in 32 C. J. 1255. On the question of dual agency attention is called to the case of Wilson v. Atwood, 81 N. H. 61, 122 A. 797, and to the finding of the trial court in the present case that in canceling the intervener's policy and substituting the plaint......
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