Monnahan v. Judd

Allen, J. The defendant’s second request for instructions was given in substance, though not in express terms. The defendant’s rights as to this were fully saved by the instructions which were given. The first request was, that upon all the evidence the plaintiff [99] was not entitled to recover. The plaintiff contended, amongst other things, that Rowe employed him to render the services for the defendant; and that if Rowe was acting without the defendant’s authority in doing this, yet the defendant afterwards ratified and adopted his act. There was evidence tending to support this view. The plaintiff and Rowe Jr. both testified that, when the plaintiff refused to go on with the work, the defendant promised to pay him for past and future work, if he would keep on. The defendant however contends that it did not expressly appear that he knew that the plaintiff was working under a contract or promise of pay made by Rowe, in his, the defendant’s name and behalf; citing Dickinson v. Conway, 12 Allen, 487; Combs v. Scott, 12 Allen, 493; Murray v. Nelson Lumber Co. 143 Mass. 250; Manning v. Leland, 153 Mass. 510. The essential point of this is, Did the defendant know that the plaintiff understood and believed that he was working for the defendant, and that the defendant was to pay him ? There was evidence sufficient to warrant a finding that he did. The plaintiff testified that at the outset the defendant told him to go ahead and do the best he could, saying, “ I will see that you come out all right.” There was some evidence tending to show that in point of fact the defendant was the chief person interested in having the work done; that he had undertaken to furnish to one Ricker money sufficient to pay all labor bills; that he employed Rowe to go to Rockland, advancing money to him for the purpose; that, when the defendant afterwards went to Rock-land, the plaintiff in conversation with him assumed that the defendant was the person who was to pay him, and asked the defendant if he had sent any money to the plaintiff’s wife yet, and on being answered, “ No,” said he should go home in the morning then; that the defendant then promised, if the plaintiff would go to work, to pay what was already due, and see that the plaintiff should receive it in the future ; that the amount due and the rate per week were ascertained, and arrangements made for sending a part of the amount to the plaintiff, and the rest to his wife. If these statements were believed, the jury might infer that the defendant knew that the plaintiff thought he was working for the defendant, and looked to the defendant for his pay, at the rate which was mentioned. These were the essen [100] tial facts, and it would not be material that he should know whether the actual engagement of the plaintiff was made by Rowe, Ricker, or Wilder. The request for instructions was therefore rightly refused; and we do not consider whether the jury might not also have been allowed to find for the plaintiff on the ground that the defendant made a distinct and independent promise, as in Abbott v. Doane, 163 Mass. 433. Exceptions overruled.