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4. Landlord and tenant en 164 (6)—In absence, fixture), and he said it was all right”; also,

of knowledge that fixture was defective and that the room “won't be occupied again unneeded repairs, defendant not liable.

til it is all right.” A few days later the Where it was not shown that defendant, plaintiff visited the room in company with when room was let to plaintiff, knew or with Mrs. Otis and said, “Well, you have had the reasonable care should have known, that gas gas fixture all fixed up new now," to wbich fixture was defective, or that repairs were need-she received no reply. At the close of the ed, she was not liable for illness from escaping gas, though she told plaintiff the fixture was ali plaintiff's case the court, upon motion, diright.

rected the jury to return a verdict for the

defendants. The plaintiff's exception to this Exceptions from Superior Court, Suffolk order presents the only question for our conCounty; F. J. MacLeod, Judge.

sideration.

[1] No one testified that the gas fixture Action of tort by Katherine M. Morrow

was defective or out of repair either before against Alice G. Otis and others to recover

or after the plaintiff was made ill, but if it for injuries caused by escaping gas. Verdict be assumed that upon the evidence the jury was directed for defendants, and plaintiff would have been warranted in finding that excepts. Exceptions overruled.

the injuries to the plaintiff were caused by Charles S. Walkup, Jr., of Boston, for the escape of gas from a defective fixture in plaintiff.

her room-a question which we do not deL. C. Doyle, of Boston, for defendants. cide-there is not sufficient evidence to jus

tify a finding of negligence on the part of the SANDERSON, J. This is an action of defendants. There was no escape of gas on tort to recover damages for injuries caused

the first night of the plaintiff's occupancy. by escaping gas. There are three counts, Why the gas escaped on the second night did based upon negligence of the defendants, in not appear. Hill v. Iver Johnson Sporting permitting gas and heating appliances to be- Goods Co., 188 Mass. 75, 74 N. E. 303. The come defective, to be and remain out of re- only evidence tending to show any change in pair, and in knowingly letting to the plain the condition of the appliance after the first tiff a room wherein the gas fixtures and ap- night was that which related to the plain. pliances were defective.

tiff's use of the gas by turning it on and off. The plaintiff was the only witness called. [2, 3] The unexplained escape of gas from She hired of the defendants a room, lighted a fixture owned by the defendants is of itself and heated by gas, in a building owned by no evidence of their negligence. Murphy v. them, for which she paid rent in advance. Boston Elevated Railway, 229 Mass. 38, 118 When the agreement was made, the plaintiff N. E. 191. If there were a defect, its nanoticed that the gas fixture in the room was ture and the time when it came into existan old one, and asked whether it was all ence were matters of conjecture, and it did right. The defendant Mrs. Otis said, point- not appear that the most careful inspection ing to the fixture, "This is a safety catch on the part of the defendants would have here; perfectly all right;" that a man who disclosed it. If the silence of Mrs. Otis when had “fixed the gas fixture" says “it is all the plaintiff spoke to her a few days after right; he ought to know." The plaintiff oc the plaintiff was made ill would support a cupied the room two nights. On the first finding that a new gas jet had been put in she turned on the gas for lighting the room, after the accident, this fact would not justibut not that for heating, and there was no fy the inference that a defective condition trouble from escaping gas. The next night for which the defendants were responsible she turned on the gas for heating at about 8 had existed before that time. It is not an o'clock, and left it on about three hours, admission of negligence. Menard v. Boston when she turned it off at the safety catch & Maine Railroad, 150 Mass. 386, 23 N. E. near the wall, which Mrs. Otis had told her 214; Shinners v. Proprietors of Locks and turned the gas off from the stove. The plain- Canals, 154 Mass. 168, 28 N. E, 10, 12 L, R. tiff thought there was no other shut-off, but | A. 554, 26 Am. St. Rep. 226; Albright v. did not know. After turning off the gas, she Sherer, 223 Mass. 39, 111 N. E. 711, went to bed and upon awaking in the morn [4] The plaintiff cannot recover on the ing was not feeling well and fell when she ground that Mrs. Otis stated to her in subtried to get up. Mrs. Spear, an occupant of stance that the gas fixture was all right, the next room, who heard her fall, came with when she knew or should have known that Mrs. Otis to the plaintiff's room and said it was defective. The evidence is not sutfithat upon opening her (Mrs. Spear's) door, cient to prove that when the room was let the hall was full of gas. Mrs. Spear then the defendants knew, or in the exercise of pointed to the gas jet in the plaintiff's room reasonable care should have known, that the and said, “This is where the trouble is ;" | tixture was defective or that any repairs but she did nothing to it. The night after the were needed on it. The facts in this case accident Mrs. Otis said to the plaintiff that distinguish it from cases like Cutter v. Hamthere had been a man there to "fix (the gas / len, 147 Mass. 471, 18 N. E. 397, 1 L. R. A.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) 429; and Clogston v. Martin, 182 Mass. 469,, Company and the plaintiff was that of seller 65 X. E. 839, which were actions for deceit and buyer. in connection with the letting of houses.

(4) In negotiating the alleged contract with Exceptions overruled.

Sydeman Bros., the Hub Raincoat Company acted as principal, and not as agent for S. Shapinsky & Co.

(5) The relation between the Hub Raincoat

Company and S. Shapinsky & Co. was that of KAUFMAN V. SYDEMAN et al.

creditor and surety.

(6) If Simmons expressly stated to the de(Supreme Judicial Court of Massachusetts. fendants that he was purchasing as principal, Middlesex. Feb. 9, 1925.)

and the defendants had, prior thereto, notified

Kaufman that they would not contract with 1. Appeal and error 907(4)—All inferences him, and the defendants in fact would not have made to support findings, where all evidence contracted with Kaufman, then the plaintiff not reported.

cannot recover. All inferences which can be made in sup- (7) If Simmons was in fact the agent of port of finding must be made, where all evi- Kaufman, and the defendants had, prior theredence is not reported.

to, notified Kaufman that they would not con

tract with him, and the defendants in fact 2. Principal and agent em 143(2)—One cannot would not have contracted with Kaufman, then be compelled to contract with person he re. the plaintiff cannot recover.

of undisclosed principal.

tween the plaintiff and the defendants, or their One cannot be held to have contracted with relatives, the plaintiff knew that the defenda person whom he has refused to accept as ants would not contract with the plaintiff, and a party to a contract, and introduction of an instructed Simmons to conceal the plaintiff's undisclosed principal cannot defeat this right. connection with the matter, and to represent 3. Principal and agent om 143(2)-One, indif- that Simmons was acting in the matter as prinferent about real party, who deals with agent cipal, and selected Simmons, because Simmons

was on friendly terms with the defendants, and of undisclosed principal, makes contract with

was likely to receive more favorable considerprincipal.

ation in trade with the defendants than any When one, who deals with agent of undis- other person, and the defendants had notified closed principal, is in fact indifferent about the the plaintiff that they would not, under any real party in interest, a contract is really made, circumstances, contract with him, then the though he supposes the agent to be dealing for plaintiff is not entitled to recover. himself.

(9) If the plaintiff arranged with S. Sha4. Appeal and error 861—Finding set aside pinsky & Co. that the binder cloth might be and new trial ordered, where on report it charged to S. Shapinsky & Co., for the reason could not be determined whether finding was

that Simmons would not take the plaintiff as right.

a credit risk, and if the plaintiff was in all

other respects the principal in the negotiaWhere, in action for defendant's alleged tions between the plaintiff and the Hub Rainfailure to deliver goods of quality required by coat Company, and if, by reason of a prior sample, defendants were entitled under possi- controversy between the plaintiff and the deble view of evidence to rulings on theory that fendants, or their relatives, the plaintiff knew defendant's contract was with third person, that the defendants would not contract with and on report it could not be determined wheth- the plaintiff, and instructed Simmons to coner finding that contract was made with plain; ceal the plaintiff's connection with the matter, tiffs was right, finding will be set aside and and to represent that Simmons was acting in new trial ordered.

the matter as principal, and selected Simmons

because Simmons was on friendly terms with Report from Superior Court, Middlesex the defendants, and was likely to receive more County; A. R. Weed, Judge.

favorable consideration in trade with the deAction of contract by Henry L. Kaufman, as fendants than any other person, and the deassignee of S. Shapinsky & Co., against Wil- fendants had notified the plaintiff that they liam H. Sydeman and others, to recover for with him,' then the plaintiff is not entitled to

would not, under any circumstances, contract defendant's alleged failure to deliver goods of quality required by sample. On report from superior court. Findings set aside, and F. L. Norton, of Boston, for plaintiff. new trial ordered.

J. J. Kaplan, of Boston, for defendants. Defendant requested the following rulings:

WAIT, J. This case is before us upon a re(1) The evidence presented does not show a contract between the defendant and S. Shapin- l in the superior court. The plaintiff sues as

port by the judge who heard it without a jury sky & Co.

(2) The negotiations between the Hub Rain- assignee of S. Shapinsky & Co. of Louisville, coat Company and Sydeman Bros. did not re

Ky., for damages caused by failure of the desult in the formation of a contract, for there fendant to deliver goods of the quality rewas no mutual assent.

quired on a sale by sample alleged to have (3) The relation between the Hub Raincoat | been made by them to S. Shapinsky & Co.

wFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

recover.

through an agent, Simmons. The defenses they know of Shapinsky's connection until rests on the ground that the plaintiff is the the complaint was made through Simmons. undisclosed principal of both Shapinsky and The judge found that a sale was made to Simmons; that they had refused to make S. Shapinsky & Co.; that S. Shapinsky was sales to the plaintiff; that they had no the undisclosed principal of Simmons; that knowledge until this suit was brought that there was no express warranty of quality or the real party in interest was the plaintiff ; condition; that the sales were made by samand that, had they known it, they would ple; that to the extent of 1,093 yards the have refused to make the sale.

goods did not correspond with the sample in The material facts reported are as fol- quality; that no trade uses or customs neg. lows: Kaufman was a dealer in hospital atived or varied the warranty implied in a supplies at Boston. He had been associated sale by sample; that the goods were accept. in business with a brother-in-law of the deed by Shapinsky; that within a reasonable fendant Sydeman, one Harris, who had put time Shapinsky gave notice to the defend. an end to the association. In early 1919, the ants of the breach of warranty and that the defendants bought from the United States damage was $710.45. There is no express government a large amount of "binder" finding that any inquiry was made of Simcloth. Kaufman wished to obtain from them mons by the defendants in regard to his a quantity of the cloth to be prepared for purchase. There is no spec finding whethsheeting. They refused to sell to him, saying er or not the defendants would have refused that they had agreed to confine their sales to go on with the transaction had they of binder cloth for sheeting purposes to Har- known the facts. No contention is made that ris. Kaufman made no attempt to purchase G. L. c. 231, § 5, which authorizes suit in his from Harris. He applied to Simmons, a

own name by one who holds a written as. manufacturer of raincoats, at Boston, doing signment of a chose in action, has not been business as the Hub Raincoat Company, and

complied with. on friendly terms with the defendants, to

[1] The judge denied nine rulings reorder seven to ten thousand yards of 'binder' quested by the defendants. The report does

not state to what extent his action thereon cloth, Kaufman told Simmons that he was unable to purchase from the defendants him was determined by his decision of fact or of self and asked him not to disclose his con- tiff assessing damages in the amount stated.

law. He made a general finding for the plainnection with the matter. Simmons declared Under the general rule, since all the evidence that Kaufman's credit was not sufficient to is not reported, all inferences which can be handle so large a transaction. Kaufman, made in support of that finding must be thereupon, got his father-in-law, S. Shapin- made. sky, to act as principal, arranging that Sim

The finding that Shapinsky was the unmons should have $100 and one-half the disclosed principal of Simmons, imports a cash discount (which proved to be about $67), finding that no relationship of agency toward and Shapinsky a commission of 10 per cent. Kaufman was assumed by Simmons. It is of the purchase price, for their remunera conceivable that Simmons regarded himself tion. In November, 1919, Simmons called the as acting only for Shapinsky; that he dedefendant by telephone, inquired about the clined to act for Kaufman because he did binder cloth, said he wished to buy for him- not consider him sufficiently responsible self, obtained a price, asked for a sample, financially, and, nevertheless, felt entitled to and a few days later, after getting the sam- obtain a profit for himself by making a purple, ordered 7,000 yards. Later still he or- chase for Shapinsky, without regard to Shadered 3,000 yards more at the same price. / pinsky's purposes or his connection with The goods were billed and shipped to Sim- | Kaufman. mons in November and December, 1919. There was a breach of the warranty imSimmons paid the bills and was reimbursed plied in the sale by sample. The defendants and paid for his services by Sh sky. The are in default. They have sold their goods goods, by arrangement with Kaufman, were and they have received their price a larger delivered direct to parties employed by amount than they were justly entitled to. Kaufman to rubberize the cloth for him ; They seek to retain this unjust gain, and, and Shapinsky agreed that the title should by showing tricky conduct by Kaufman, to go with the goods to Kaufman. When the leave the loss to him. goods were opened for manufacture, defects The facts reported justify a finding that in quality appeared. Shapinsky wrote Sim- both Simmons and Shapinsky were agents of mons in complaint. The letter eventually Kaufman, and that Simmons lied at the rewas sent to the defendants. They refused quest and for the purposes of Kaufman. to recognize any liability, and claimed that they do not require a finding that the dethe sale was without guarantee of quality fendants would have gone on; nor do they or condition. The defendants had no infor-compel a finding that they would not have mation of Kaufman's connection with the gone on, had they known all the facts. Their transaction, and did not learn of it until this obligation to Harris, if it existed at all, may suit was begun in November, 1921. Nor did have ended before the dealings with Sim

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(146 N.E.) mons began. If the judge took the view that, dealing for himself, yet if he has been in no Simmons and Shapinsky were tools of Kauf- manner injured he cannot object to being man; that Shapinsky was undisclosed prin- made responsible to the principal.” Devens, cipal for Simmons, but also, and as part of J., in Sheehan v. Marston, 132 Mass. 161, a single transaction, undisclosed agent for 162, citing Selkirk v. Cobb, 13 Gray, 313. Kaufman as undisclosed principal one step The judge in the case before us has found further removed; that the defendants were that Shapinsky was Simmon's principal, and in earnest in refusing to sell to Kaufman that Shapinsky accepted the goods; and he and would have refused to deal with Sim- may have reached this conclusion because mons had they known he was acting remote- the evidence satisfied him that, whatever ly for Kaufman, then he was wrong in re- Sydeman once told Kaufman, he was really fusing the defendants’, requests.

indifferent at the moment of the dealings In a dictum in Humble v. Hunter, 12 Q. with Simmons, whether Simmons was acting B. 311, Lord Denman declared:

for himself as he said or for some one else. "You have a right to the benefit you contem

If he was satisfied of this, he was acting plate from the character, credit and substance properly. in refusing the defendants' re. of the person with whom you contract." quests, and in finding for the plaintiff.

[4] Our difficulty arises from being unable The remark is obiter, but it has been used to say from the report upon which theory he to support decisions that no contract is made acted. In Clarke v. Massachusetts Title Ins. where one who has refused to deal with a Co., 214 Mass. 31, 100 N. E. 1089, and De particular person has gone through the form Young v. Andrews Co., 214 Mass. 47, 100 N. of contracting with a third party who turns E. 1080, we held that a refusal to give a out to be an agent for the repudiated person request to which a party was entitled was as undisclosed principal, and who has con

error requiring a new trial, although the cealed that fact. Winchester v. Howard, 97 finding made could be sustained on the eviMass. 303, 93 Am. Dec. 93; Boston Ice Co. dence. John H. Hetherington & Sons v. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; William Firth Co., 210 Mass. 8, 17, 18, 19, Chapman, J. in Winchester v. Howard, supra, 95 N. E, 961. The defendants were entitled to stated as law that:

the rulings requested in a possible view of "A man's right to refuse to enter into a the evidence; and, though the finding may contract is absolute, he is not obliged to sub- have been right, we are unable, on the remit the validity of his reasons to a court or port, so to determine. As a result, the order jury."

must be, finding set aside and a new trial [2] It follows, logically, that one cannot be to be had.

So ordered.
held to have contracted with a person whom
he has refused to accept as party to a con-
tract. Rodliff y. Dallinger, 141 Mass. 1, 4
N. E. 805, 55 Am. Rep. 439; Gordon v. Street,

THRELKELD V. BOSTON ELEVATED [1899] 2 Q. B. 641; Cundy v. Lindsay, 3

RY, CO. App. Cas. 459. The introduction of an undisclosed principal is not to be permitted to (Supreme Judicial Court of Massachusetts. defeat this right. Courts of equity refuse

Suffolk. Jan. 30, 1925.) to order specific performance when an agree- Carriers m347(4)-Evidence held to warment has been made with an agent who is rant finding that passenger was justified in acting for the objectionable person as assuming she could rightfully board train disclosed principal. Archer v. Stone, 78 Law from unloading platform, so that direction Times, 34; Kurinsky v. Lynch, 201 Mass. 28, of verdict for carrier was improper. 87 N. E. 70.

In passenger's action for injuries received [3] A different situation arises, however, while attempting to board train, evidence held when one, who deals with an agent for an sufficient to warrant jury finding that plaintiff, undisclosed principal, is in fact indifferent having alighted on unloading platform, was about the real party in interest. Smith v.

justified in assuming she could rightfully again

board train when doorway was free of leapWheatcraft, 9 Ch. Div. 223. In such circum- ing passengers, and that she was invited to do stances a contract is really made. The prin- so, so that direction of verdict for defendant ciple is stated by Pothier, Law of Obliga- was improper. tions, p. 1, c. 1, § 19: "When the consideration of the person with

Exceptions from Superior Court, Suffolk whom I suppose myself to contract, forms no County; W. H. Whiting, Judge. ingredient at the contract, and I should equally

Action of tort by Katherine Threlkeld have made the contract with any other per- against the Boston Elevated Railway Comson, the contract would be valid."

pany to recover for injuries received while There a mistake about the person is im- boarding defendant's train. Verdict was dimaterial. “Although one may have been mis- rected for defendant, and plaintiff excepts. led by the pretense of the agent that he was Exceptions sustained.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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18

J. W. Monahan, of Cambridge, for plain-, which the plaintiff alighted from the train, tiff.

which she boarded at the South Station, and H. S. MacPherson, of Boston, for defend- took the next train to Harvard Square, was ant.

the unloading platform. There was no evi.

dence that the plaintiff was warned by signs PIERCE, J. This is an action of tort to or otherwise that she should not board the recover damages for personal injuries, re- train for Cambridge from the platform where ceived by the plaintiff while attempting to she stood when she attempted to board the board a train of the defendant company in car. At the conclusione of the evidence the the Park Street under station. The plaintiff judge directed a verdict for the defendant, became a passenger at the South Station, and and the case is before this court on the ex. rode on one of the tunnel trains from that ceptions of the plaintiff thereto. station to the Park Street station, where she Disregarding the evidence of wall and alighted on the northerly platform, intending swinging signs not shown to have been seen to transfer at the Park Street upper station by the plaintiff, and the evidence of the defor Brookline. Immediately after alighting fendant concerning a custom of its employees she changed her mind and concluded to con- to prevent passengers from boarding trains tinue on to Harvard Square, Cambridge. from the unloading platform, which evidence The train upon which she rode from the was received subject to the exception of the South Station left the station for Harvard plaintiff, the only question for decision is, Square. The plaintiff remained on the plat- Was the evidence sufficient to warrant a jury form where she alighted until the arrival finding that the plaintiff was justified in asof the next train. When that train stopped suming she could rightfully again board the the door on the side of the platform upon train when the doorway was free of leaving which the plaintiff was standing was opened. passengers? We think the jury warrantably The passengers passed out and the plaintiff could find an invitation to the plaintiff to do undertook to board the train through the so; and the plaintiff accepted the invitation open door. When she had one foot inside the with all the rights of a passenger. The facts door and was bringing her other foot in, the distinguish the case at bar from Hillman v. door was closed, caught her foot, and she Boston Elevated Railway, 207 Mass. 478, 93 was thrown to the floor inside the car, break- N. E, 653, 32 L. R. A. (N. S.) 198; Youngering her wrist.

man v. New York, New Haven & Hartford There was evidence that there were two Railroad, 223 Mass. 29, 111 N. E. 607; Hyams platforms at the station where the plaintiff v. Boston Elevated Railway, 216 Mass. 560, boarded the car in which she received her in- 104 N. E. 370, and Rhoades v. Boston Elejury, one a loading platform and the other vated Railway, 232 Mass. 361, 122 N. E. 194. an unloading platform. The platform on Exceptions sustained.

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