Chesebro v. Lockwood

Prentice, G. J. The nonsuit was properly granted. There was no evidence upon which liability on Mrs. Lockwood’s part, whether by force of an express promise or of acts and circumstances raising an implied one, could be predicated, in the absence of pro'of of F. A. Lockwood’s agency. The evidence offered for the purpose of establishing such agency, including that which was excluded as well as that admitted, was wholly insufficient for that purpose. From it no conclusion could reasonably have been drawn that the son was either the general agent of his mother, or her special agent in the care and management of her real estate in question. The existence of an agency for one purpose does not tend to establish the existence of one for another and entirely different purpose. Neither does the fact of a special agency tend to prove a general agency. The verdict in favor of the defendant F. A. Lockwood could not properly have been set aside. The jury was amply justified in finding, as its verdict indicates that it did, that he did not promise as alleged; and without such promise recovery could not have been had upon the first count. It is difficult to discover how he could have been *224 held liable under the second count, since he was not the owner of any of the property benefited, and had neither received or appropriated, nor could receive or appropriate, the benefit. Day v. Caton, 119 Mass. 513, 515. Furthermore, it is apparent that the jury found that Lockwood’s and not Keeney’s version of the sole interview between them touching the boundary wall was the correct one. That being so, all reasonable foundation for an implied promise was removed from the case. Lockwood’s knowledge of the construction of the wall, under the circumstances detailed by him, did not call upon him to speak, and his silence as the work progressed was not conduct out of which the law would raise an obligation to pay for benefits resulting from the work. One may indeed be required to compensaté another for benefits conferred by the other’s labor and service, either accepted by or necessarily accruing to the beneficiary,' when, having reasonable ground to believe that the labor is being done or service performed in the expectation of compensation, he stands silently by and permits the labor or service to continue. Day v. Caton, 119 Mass. 513, 515; Weinhouse v. Cronin, 68 Conn. 250, 255, 36 Atl. 45. But this was not Lockwood’s situation under the facts as found. These considerations lead to the further conclusion that the plaintiff could not have been harmed by the single passage in the court’s instructions complained of, which, under the circumstances of the case, amounted to no more than that the plaintiff could not recover unless his version of what occurred at the interview, as distinguished from Lockwood’s radically different version, was correct. Although the statement as thus made may not have been technically accurate as applied to all possible conditions, it was one sufficient and suitable for the guidance of the jury to a correct conclusion under the circumstances presented for its consideration. *225 The two rulings upon the admission of testimony were harmless. One excluded from the jury’s consideration the testimony, previously received, of a bank officer who testified to the facts already recited concerning F. A. Lockwood’s bank transactións for his mother. These facts, with no other support than was given them, could not, as we have seen, have helped the plaintiff in establishing an agency embracing the care or management of his mother’s real estate, and that was their only possible relevancy. The evidence excluded by the second ruling possessed no importance save as tending to establish the agency of Keeney, which was otherwise fully testified to, unquestioned and assumed by the court in its instructions, which gave the plaintiff the full benefit of all of Keeney’s acts and conversations. There is no error. In this opinion the other judges concurred.