Worcester v. Cook

De Courcy, J. The principal question raised by the exceptions is whether there was evidence on which the jury could find that Bemis, when he made the alleged representations with respect to the survey and acreage of the timber, was the agent of the defendant. There was evidence of the following facts. The Brewer heirs had empowered Cook to deal with the property as though he were .the owner. In October, 1909, he mailed toi all the lumber men in New England printed circulars describing the quality and estimated quantity of the growth. Andrew T. [541] Bemis, who was in the business of cutting off lumber, and who bought and sold some as well, brought this timber to the attention of the plaintiffs and secured them as purchasers after a number of conversations on the lot and elsewhere. On April 18, 1910, the plaintiff Franklin Worcester (hereinafter referred to as the plaintiff) met the defendant according to arrangements made by Bemis and completed the purchase. 1. The letters in the record which passed between Bemis and the defendant from November 8, 1909, to February 15, 1910, seem to indicate that at least düring that period Bemis was not acting as the defendant’s agent, but as a broker or middleman endeavoring to bring the parties together. There was other evidence, however, bearing on the issue of agency. Bemis died on January 30, 1913, and declarations made by him before the commencement of this action were admitted under R. L. c. 175, § 66. For instance he said that “Mr. Cook asked him to sell” this lot, and that “he saw Mr. Cook, and Mr. Cook asked him to find a customer for it.” Emma B. Bemis, who testified to this, said further that in July she heard Bemis say to the defendant that “ he thought he had very small pay for the work he had done,” and that Cook at that time paid him $150, and said that was all he was willing to allow. The receipt which Bemis signed was prepared by the defendant and purported to be “payment in full for services rendered in connection with the sale of the Brewer wood lot.” One Bowen testified that Bemis had told him, among other things, that “Mr. Cook wanted he should sell it [the timber lot] for him if he could.” Mr. Garrity, formerly counsel for the plaintiffs, was told by Bemis that Cook, at their first interview, told him (Bemis) that if he should find a purchaser he (Cook) would make it right with him. Finally, when the plaintiff introduced himself to the defendant on April 18, 1910, as the man who had been talking with Mr. Bemis, “who claimed to be authorized to sell the timber on the Brewer estate,” he informed Cook that he was there "according to arrangements made by Mr. Bemis to complete the transaction, if everything, the representations made, were truthful, and that he had authority to sell the lot, and Mr. Cook could give me a good title to the property;” and the defendant said in reply, “I guess everything is all right.” [542] The truthfulness of this testimony and its weight as compared with that introduced by the defendant is not for us to determine. We are of opinion that it entitled the plaintiffs to go to , the jury on the question of Bemis’s agency. 2. It appeared in evidence that the plaintiff himself, before buying the lot, had some talk with Bemis about helping him to sell the timber; and that he paid Bemis $250 in June or July, for services. It is strongly argued that Bemis was disqualified by this transaction from further acting as agent of the defendant. But it cannot be so ruled as matter of law on the facts disclosed by the record as it now stands. See Rice v. Wood, 113 Mass. 133; Quinn v. Burton, 195 Mass. 277; Little v. Phipps, 208 Mass. 331; Ebert v. Haskell, 217 Mass. 209. 3. There was evidence that Bemis assured the plaintiff that an actual survey had been made of the timber lots, and that there were about ninety acres in the two lots. While Bemis did not expressly state that this acreage was the area ascertained by the survey, it could be found that his language reasonably conveyed that meaning to the plaintiff, and both men used that figure in estimating the quantity of timber that could be cut. This distinguishes the case from Mabardy v. McHugh, 202 Mass. 148, Mooney v. Miller, 102 Mass. 217, and Gordon v. Parmelee, 2 Allen, 212, notwithstanding that the boundaries were designated to the plaintiff; and brings it within the principle of Roberts v. French, 153 Mass. 60. It should be added that it does not appear that the defendant was informed that Bemis had told the plaintiff that the lot had been surveyed; and hence the defendant’s responsibility for that representation cannot rest on ratification. Combs v. Scott, 12 Allen, 493. 4. It could be found that the representations made by Bemis with reference to a survey were rightly relied upon by the plaintiff as an inducement to purchase. There was evidence that one could not determine by inspection how many acres were in the lots, on account of the character of the timber and the configuration of the land. And a definite statement of measurement well might divert a purchaser from making further investigation. 5. Finally there was evidence that the representations were untrue. Instead of a timber acreage of ninety acres there were [543] only about sixty-four, as shown by a survey made for the defendant before July, 1909. In accordance with the report the verdict ordered for the defendant must be set aside, and a new trial granted. So ordered.