Nelson v. Imperial Water Proof Co.

Braley, J. The exceptions are confined to the admission and exclusion of evidence. The fact that Clark had testified as a witness for the plaintiff before the auditor did not make him the plaintiff’s witness at the trial before the jury, and the defendant having subsequently taken his deposition he became its witness. The plaintiff accordingly was properly allowed in contradiction of Clark’s statements as a deponent to introduce portions of his evidence given before the auditor. It appears that the defendant is engaged in the manufacture of “a waterproofing compound to be used in connection with cement work on buildings,” and the plaintiff contended that by a contract partly oral and partly by letter he was to act as agent for the sale of the product, and “the taking of contracts for doing work with said product” within the New England States, receiving as compensation on the sale of the product “such amounts above a certain stipulated figure as it was billed” to him with “a commission of fifty per cent ... on the profits of all contracts within said territory.” And, the defendant having failed in performance, the plaintiff sues to recover commissions earned, and damages for breach of the contract. [391] The plaintiff testified that one Cassingham, acting in the defendant’s behalf, solicited him to take the agency, and the negotiations resulted in the contract described. The correspondence which thereupon followed between Cassingham and the company, and the plaintiff and the company, would warrant the jury in finding that, not only was Cassingham rightfully acting for it, but with knowledge of what he had done the defendant recognized the validity of the contract as including not only the sale of the product but payment of commissions. Foster v. Rockwell, 104 Mass. 167, 172. Harrod v. McDaniels, 126 Mass. 413, 415. But Cassingham, as a witness for the defendant, having testified that the defendant’s secretary, one Davis, had only directed him to “look up an agent for the sale of their products in the New England States” and that he was not authorized "to make any arrangement or agreement with any one to pay commissions on contracts obtained,” the defendant called Davis, who after testifying that a conversation had taken place defining Cassingham’s powers, was then asked to state the conversation. The question was excluded, although the defendant’s counsel stated that the “evidence was offered for the purpose of showing that Cassingham’s authority to engage an agent was limited to an agency for selling the product.” The ruling was wrong. Cohen v. Jackson, 210 Mass. 328. Harrigan v. Dodge, 216 Mass. 461. The only issue as to liability was the measure of Cassingham’s powers. While it was undisputed that he was authorized to engage the plaintiff to sell the product, yet he was not a general agent, and the question whether he had been authorized to promise a commission on the profits of the contracts was in controversy. The credibility of Cassingham as a witness, or of the proposed witness Davis, under the offer of proof, when viewed in the light of the correspondence previously referred to as well as the legitimate inferences of fact to be drawn from all the evidence, was for the jury under suitable instructions. If, however, they believed Cassingham’s version of the conversation when the plaintiff was engaged, no commissions had been promised, and the evidence excluded was clearly admissible to show the scope of Cassingham’s agency. Coleman v. Lewis, 183 Mass. 485. Record v. Littlefield, 218 Mass. 483, 486, and cases cited. Exceptions sustained.