Union Hosiery Co. v. Hodgson

Bingham, J. This action is brought to recover the value of certain steam used by the defendant, in which the plaintiffs claim to be joint owners or tenants in common. Two grounds of defence were relied upon at the trial: (1) That the Belknap Mills was the sole owner of the steam, and that Marshall was its general manager, and agreed to an exchange of the steam for services to be rendered by the defendant in tending the boiler; and (2) that if Stewart and Morin owned the steam in common with the Belknap Mills, Marshall was their agent and made the agreement in their- behalf. A general verdict was rendered for the defendant. It cannot be ascertained whether the verdict was rendered upon the first or second ground of defence; but in order to reach a verdict for the defendant on either ground, the jury must have found that Marshall made the agreement alleged by the defendant. It was conceded that the Belknap Mills owned an interest in the steam, but the defendant’s contention was that it was the sole owner. The charter of the Belknap Mills is not reported, but the company held itself out as possessing authority to rent its premises to tenants and to supply them with steam from its boiler. Stewart, Morin, and the defendant were its tenants. Marshall was its general manager, and therefore possessed authority to *431 make tlie contract in its behalf. The jury have found that he made the alleged agreement with the defendant. The record, as will be hereinafter shown, presents no error of which the Belknap Mills can avail itself. Under these circumstances, it matters not whether the Belknap Mills owned the whole or a fractional part ■of the steam; its right of recovery is precluded by the verdict. Can the verdict be sustained as against Stewart and Morin? The case was tried upon the theory, and.the jury were instructed, that the plaintiffs could maintain their action if Stewart and Morin owned interests in the steam, and if Marshall had no authority to make the contract of exchange with the defendant in their behalf. No exception was taken to this instruction. For the purposes of this case, the instruction may be regarded as the law, without considering whether the action in the present form can be maintained (Russell v. Clough, 71 N. H. 177; Tucker v. Preston, 60 Vt. 473; Turner v. Webster, 24 Kan. 38; Keener Quasi-Cont. 330), or cannot be (Concord Coal Co. v. Ferrin, 71 N. H. 33; Clark v. Sanborn, 68 N. H. 411; North Haverhill Water Co. v. Metcalf, 63 N. H. 427), or whether the declaration -should be amended (Hayes v. Colby, 65 N. H. 192; Gould v. Blodgett, 61 N. H. 115; Taylor etc. Co. v. Starkey, 59 N. H. 142), or if amended, whether the evidence might disclose such a state of facts as to preclude a recovery. Pickering v. Moore, 67 N. H. 533, 536. No error is perceived in that part of the charge wherein the court stated the plaintiffs’ claim and referred to Mr. Marshall as the agent of the Belknap Mills, nor in the reference made to certain documentary evidence in the case. The exception upon which counsel for the plaintiffs seem to specially rely is the one taken to that part of the charge wherein the jury were told that “ if Marshall was the agent of these plaintiffs in buying this coal, and making these payments, and doing what it is in evidence he did do, and if he was acting as agent for these plaintiffs, then I shall rule as a matter of law that they would be bound by whatever representation he made to . . . Hodgson, unless . . . Hodgson knew to the contrary. If you .should find as a matter of fact that . . . Marshall was the agent of the plaintiffs in this matter, — that is a question of fact for you to determine, — and that acting in his capacity as agent for these plaintiffs he had this talk with . . . Hodgson, as testified to by the defendant, then I charge you again as a matter -of law, the defendant would be entitled to your verdict, unless you find that . . . Hodgson knew of . . . Marshall’s agency and the limitations of it.” This instruction was misleading and erroneous. It did not -explain to the jury what was essential to give Marshall authority *432 to bind Stewart and Morin as their agent. If it did not in effect tell the jury that they might assume that Marshall had authority to act for Stewart and Morin if he undertook to make the contract in their behalf, it at least permitted them to infer that he had authority to bind Stewart and Morin if he was their agent in' buying and paying for the coal and undertook to act in their behalf in making the contract with the defendant. But authority to exchange the steam for the defendant’s services could not be inferred from his undertaking to so dispose of it, nor from his agency to buy and pay for the coal. It must be proved by other competent evidence. This exception is sustained as to Stewart and Morin; but as there is no question of Marshall’s general agency for the Belknap Mills, the error does them no harm. The defendant did not deny that Mr. Hodgson was her agent. His agency for her could be proved by his testimony. The remark of the defendant’s counsel, to which exception was taken, seems to be of no materiality. To determine who owned the coal, it was necessary to ascertain the understanding of all the parties interested in its purchase; As Morin was one of the parties so interested, his understanding was material and the testimony which he offered should have been received in evidence. Foster v. Sargent, ante, p. 170. The case finds that Stewart did not know of any agreement between Marshall and the defendant as to the steam, beyond the fact that she might use it. As this appears to have been a conceded fact, the plaintiffs were in no way injured by the' exclusion of the question addressed to Stewart. The defendant used the steam during the month of December, 1899. The value of the steam used by her during this period was in dispute. The plaintiffs, the defendant, and others used steam from the same boiler that month. As bearing on the value of the steam used by the defendant, the plaintiffs offered to show the amount of coal consumed the two or three years preceding and the year following that in which the defendant had steam. If the amount of coal consumed in those years, other conditions being the same, had some tendency, when compared with the total amount consumed during the business year of which the above named month formed a part, to prove how much was consumed that month for the defendant’s benefit, still it was for the trial justice to say whether the conditions were similar, and whether the evidence was too remote. As no reason for the exclusion of the evidence was given, and as it may have been -properly excluded for either of the reasons above named, the exception presents no question of law. Reagan v. Railway, ante, p. 298 ; Saucier v. Spinning Mills, ante, p. 292; Challis v. Lake, 71 N. H. *433 90; Hilliard v. Beattie, 59 N. H. 462; State v. Railroad, 58 N. H. 410. The instruction requested as to the ownership of the coal was properly denied. As to this question, different inferences might be drawn from the facts proved, and it was for the jury to determine. The exceptions to the exclusion of the evidence as to Morin’s understanding of the ownership of the coal, and to the charge of the court as to agency, are sustained. The others are overruled. Neither of those sustained was material to a recovery by the Belknap Mills, and the verdict stands as to them; but as to. Morin and Stewart it is set aside. Case discharged* All concurred.