Aluminum Products Co. v. Regal Apparel Co. , 296 Mass. 84 ( 1936 )

Rugg, C.J.

This is an action of contract wherein the plaintiff seeks to recover the price of goods, wares and merchandise sold and delivered to the defendant. The answer is a general denial and an allegation of payment. The case was tried in the Municipal Court of the City of Boston. The report of the trial judge states that it “contains all the evidence material to the questions reported.” The only questions reported are “the rulings and refusals to rule as requested.” The defendant made five “requests for rulings,” all of which were refused. It is not necessary to recite those requests.

The contention of the defendant is that it ordered the goods, wares and merchandise described in the declaration from one Opp, dealing with him as principal, and paid for them at the time of the order. Opp sent the order to the plaintiff, which shipped the goods direct to the defendant “with a bill for same” on August 2, 1934. A month later a statement was sent by the plaintiff to the defendant. It does not appear when the goods reached the defendant. The trial judge found in numbered paragraphs “the following facts as applied to the defendant’s requests for rulings:” (1) “that the defendant retained goods after receiving a bill for same. (2) . . . that the plaintiff was not an undisclosed principal. Defendant knew that Opp was acting for the plaintiff. (3) . . . that the defendant did not deal solely with the agent who acted in his own behalf. (4) . . . that there is no evidence that the agent had authority to do anything except take orders. (5) . . . that the payment made to Opp was for goods supposedly belonging to Opp and not to the plaintiff. More than two weeks after Opp was paid cash plaintiff shipped goods with a bill. Defendant accepted the goods knowing that a bill accompanied them.”

The defendant argues that some of the special findings made by the trial judge are not supported by the evidence. That question is not reported. Hence, it is not open to the defendant and cannot be considered. Reid v. Doherty, 273 Mass. 388. Segal v. Allied Mutuals Liability Ins. Co. 285 Mass. 106, 109. Spencer v. Burakiewicz, 288 Mass. 83, 85. Moreover, there is no statement that the evidence bearing on those findings is reported.

The finding that the defendant accepted the goods knowing that a bill accompanied them warranted the decision of the trial judge in favor of the plaintiff. The defendant could not receive and keep the goods of the plaintiff as the goods of Opp delivered in performance of Opp’s contract, except on the terms of the plaintiff, one of which, disclosed on the face of the report, was that they had not been, but were to be, paid for. Hobbs v. Massasoit Whip Co. 158 Mass. 194.

The plaintiff is not suing on the contract made by Opp with the defendant, but on the obligation to pay which arose when the defendant took and kept the goods of the plaintiff knowing that it expected pay for them from the defendant. The defendant cannot prove payment of that obligation by showing payment to Opp. According to the finding of the trial judge, Opp had no authority except to take orders. That carried no implication of authority to accept payment for goods sold by him. Boice-Perrine Co. v. Kelley, 243 Mass. 327, 330.

The evidence does not require a finding that as between Opp and the defendant there was a contract of sale, or anything more than an agency on the part of Opp to sell goods for the plaintiff. Foster v. Graham, 166 Mass. 202. Darling-Singer Lumber Co. v. Commonwealth, 290 Mass. 488. Butwick v. Grant, [1924] 2 K. B. 483. The tender of the goods by the plaintiff to the defendant with a bill in its own name was notice to the defendant that the plaintiff had not accepted the order as given to Opp, and was not assuming to act as principal in an existing contract but was making a counter offer. The evidence justified a finding that this counter offer was accepted by the defendant. There was no error of law in dealing with the questions reported.

Order dismissing report affirmed.