Barnard v. Coffin

Field, J. Of the rulings requested by the defendants, the second and third were refused because the facts were not found to' be as they were assumed to be in the requests; and this is a sufficient reason for the refusal. The remaining exception is to the refusal to rule that on the whole evidence the plaintiff could not maintain the action. The judge found that no consent was given by the plaintiff to the defendants to delegate their authority to a sub-agent, and that no custom or usage to delegate authority in similar cases was shown; and that the nature of the employment of the defendants by the plaintiff was that they undertook, for a compensation to be paid them, to aid the plaintiff in selling the land, by obtaining, if possible, offers for it, and communicating them to him, for his acceptance or rejection, together with such information as they could readily obtain to assist him in determining his action upon these offers, and by consummating a sale in case such an offer was accepted. The judge also found that Ochs was the agent of the defendants in the business of obtaining and transmitting offers. The evidence warranted these findings. The only question of law is whether, with these findings, the plaintiff can, on the other facts found and on the evidence, maintain his action. If Ochs was employed by the defendants, without the express or implied consent of the plaintiff, and if there was no usage in the business to employ sub-agents, and there was no necessity from the nature of the business that sub-agents should be employed, there is no privity between the plaintiff and Ochs, and Ochs is only liable to his employers, who were the defendants, and the defendants are liable to the plaintiff for the acts of Ochs, in the same manner as if those acts were their own. [41] Warren Bank v. Suffolk Bank, 10 Cush. 582. Pownall v. Blair, 78 Penn. St. 403. Darling v. Stanwood, 14 Allen, 504. Stephens v. Badcock, 3 B. & Ad. 354. It is argued that, as the plaintiff knew before he signed the deed that the sale was made by Ochs, the plaintiff, by confirming the sale and signing the deed, ratified the employment of Ochs. If the plaintiff understood that Ochs was employed by the defendants as his agent, then these acts of the plaintiff might be held to be a ratification of his employment, and equivalent to an authority to the defendants to employ Ochs as the agent of the plaintiff. But if the plaintiff understood that the defendants employed Ochs as their agent to assist them in transacting the business which they had undertaken, then these acts of the plaintiff might only show that the plaintiff was willing that the defendants should transact the business by means of their servants or agents, for whom they should be responsible; and it was competent for the judge, on the evidence, to find that this was the understanding and intention of the plaintiff, and he has in effect so found. The principle which runs through the cases is, that, if an agent employs a sub-agent for his principal, and by his authority, express or implied, then the sub-agent is the agent of the principal, and is directly responsible to the principal for his conduct, and, so far as damage results from the conduct of the sub-agent, the agent is only responsible for a want of due care in selecting the sub-agent; but if the agent, having undertaken to do the business of his principal, employs a servant or agent, on his own account, to assist him in what he has undertaken, such a sub-agent is an agent of the agent, and is responsible to the agent for his conduct, and the agent is responsible to the principal for the manner in which the business has been done, whether by himself or by his servant or agent. The decision in this case, as reported in 138 Mass. 37, is, that the finding that “ the defendants were bound to see to it that the offer transmitted was a genuine offer and not the offer of a sub-agent,” was a ruling of law which could not be supported if the defendants were only liable on the ground of negligence, and not on the ground that Ochs was their agent, for whose acts they were responsible. Exceptions overruled.