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(146 N.E.)

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

KAUFMAN v. SYDEMAN et al.

(Supreme Judicial Court of Massachusetts. Middlesex. Feb. 9, 1925.)

1. Appeal and error 907(4)-All inferences made to support findings, where all evidence not reported.

All inferences which can be made in support of finding must be made, where all evidence is not reported.

2. Principal and agent 143 (2)-One cannot be compelled to contract with person he refused to accept as party by introduction of undisclosed principal.

One cannot be held to have contracted with a person whom he has refused to accept as a party to a contract, and introduction of an undisclosed principal cannot defeat this right. 3. Principal and agent 143(2)-One, indifferent about real party, who deals with agent of undisclosed principal, makes contract with principal.

When one, who deals with agent of undisclosed principal, is in fact indifferent about the real party in interest, a contract is really made, though he supposes the agent to be dealing for

himself.

4. Appeal and error 861-Finding set aside and new trial ordered, where on report it could not be determined whether finding was right.

Where, in action for defendant's alleged failure to deliver goods of quality required by sample, defendants were entitled under possible view of evidence to rulings on theory that defendant's contract was with third person, and on report it could not be determined whether finding that contract was made with plaintiffs was right, finding will be set aside and new trial ordered.

(4) In negotiating the alleged contract with 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 creditor and surety.

(6) If Simmons expressly stated to the defendants that he was purchasing as principal, and the defendants had, prior thereto, notified Kaufman that they would not contract with him, and the defendants in fact would not have contracted with Kaufman, then the plaintiff

cannot recover.

(7) If Simmons was in fact the agent of Kaufman, and the defendants had, prior thereto, notified Kaufman that they would not contract with him, and the defendants in fact would not have contracted with Kaufman, then the plaintiff cannot recover.

(8) If, by reason of a prior controversy between the plaintiff and the defendants, or their relatives, the plaintiff knew that the defendants would not contract with the plaintiff, and instructed Simmons to conceal the plaintiff's connection with the matter, and to represent that Simmons was acting in the matter as principal, and selected Simmons, because Simmons was on friendly terms with the defendants, and was likely to receive more favorable consideration in trade with the defendants than any other person, and the defendants had notified the plaintiff that they would not, under any circumstances, contract with him, then the plaintiff is not entitled to recover.

(9) If the plaintiff arranged with S. Shapinsky & Co. that the binder cloth might be charged to S. Shapinsky & Co., for the reason that Simmons would not take the plaintiff as a credit risk, and if the plaintiff was in all tions between the plaintiff and the Hub Rainother respects the principal in the negotiacoat Company, and if, by reason of a prior controversy between the plaintiff and the defendants, or their relatives, the plaintiff knew that the defendants would not contract with the plaintiff, and instructed Simmons to conceal the plaintiff's connection with the matter, and to represent that Simmons was acting in 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.

Action of contract by Henry L. Kaufman, as assignee of S. Shapinsky & Co., against William H. Sydeman and others, to recover for defendant's alleged failure to deliver goods of quality required by sample. On report from superior court. Findings set aside, and new trial ordered.

Defendant requested the following rulings: (1) The evidence presented does not show a contract between the defendant and S. Shapinsky & Co.

(2) The negotiations between the Hub Raincoat Company and Sydeman Bros. did not result in the formation of a contract, for there was no mutual assent.

(3) The relation between the Hub Raincoat

favorable consideration in trade with the defendants than any other person, and the defendants had notified the plaintiff that they with him, then the plaintiff is not entitled to would not, under any circumstances, contract

recover.

F. L. Norton, of Boston, for plaintiff.
J. J. Kaplan, of Boston, for defendants.

WAIT, J. This case is before us upon a report by the judge who heard it without a jury in the superior court. The plaintiff sues as assignee of S. Shapinsky & Co. of Louisville, Ky., for damages caused by failure of the defendant to deliver goods of the quality required on a sale by sample alleged to have been made by them to S. Shapinsky & Co.

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

through an agent, Simmons.

rests on the ground that the plaintiff is the undisclosed principal of both Shapinsky and Simmons; that they had refused to make sales to the plaintiff; that they had no knowledge until this suit was brought that the real party in interest was the plaintiff; and that, had they known it, they would have refused to make the sale.

The defense they know of Shapinsky's connection until the complaint was made through Simmons. The judge found that a sale was made to S. Shapinsky & Co.; that S. Shapinsky was the undisclosed principal of Simmons; that there was no express warranty of quality or condition; that the sales were made by sample; that to the extent of 1,093 yards the goods did not correspond with the sample in The material facts reported are as fol- quality; that no trade uses or customs neglows: 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 acceptin business with a brother-in-law of the de- ed by Shapinsky; that within a reasonable fendant Sydeman, one Harris, who had put time Shapinsky gave notice to the defendan 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 specific 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 asmanufacturer 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 order seven to ten thousand yards of 'binder' cloth. Kaufman told Simmons that he was

unable to purchase from the defendants him

self and asked him not to disclose his con

nection with the matter. Simmons declared that Kaufman's credit was not sufficient to handle so large a transaction. Kaufman, thereupon, got his father-in-law, S. Shapinsky, to act as principal, arranging that Simmons should have $100 and one-half the cash discount (which proved to be about $67), and Shapinsky a commission of 10 per cent. of the purchase price, for their remuneration. In November, 1919, Simmons called the defendant by telephone, inquired about the binder cloth, said he wished to buy for himself, obtained a price, asked for a sample, and a few days later, after getting the sample, ordered 7,000 yards. Later still he ordered 3,000 yards more at the same price. The goods were billed and shipped to Simmons in November and December, 1919. Simmons paid the bills and was reimbursed and paid for his services by Shapinsky. The goods, by arrangement with Kaufman, were delivered direct to parties employed by Kaufman to rubberize the cloth for him; and Shapinsky agreed that the title should go with the goods to Kaufman. When the goods were opened for manufacture, defects in quality appeared. Shapinsky wrote Simmons in complaint. The letter eventually was sent to the defendants. They refused to recognize any liability, and claimed that the sale was without guarantee of quality or condition. The defendants had no information of Kaufman's connection with the transaction, and did not learn of it until this

[1] The judge denied nine rulings requested by the defendants. The report does not state to what extent his action thereon law. He made a general finding for the plainwas determined by his decision of fact or of Under the general rule, since all the evidence tiff assessing damages in the amount stated. is not reported, all inferences which can be made in support of that finding must be made.

The finding that Shapinsky was the undisclosed principal of Simmons, imports a finding that no relationship of agency toward Kaufman was assumed by Simmons. It is conceivable that Simmons regarded himself as acting only for Shapinsky; that he declined to act for Kaufman because he did not consider him sufficiently responsible financially, and, nevertheless, felt entitled to obtain a profit for himself by making a purchase for Shapinsky, without regard to Shapinsky's purposes or his connection with Kaufman.

There was a breach of the warranty implied in the sale by sample. The defendants are in default. They have sold their goods and they have received their price a larger amount than they were justly entitled to. They seek to retain this unjust gain, and, by showing tricky conduct by Kaufman, to leave the loss to him.

The facts reported justify a finding that both Simmons and Shapinsky were agents of Kaufman, and that Simmons lied at the request and for the purposes of Kaufman. They do not require a finding that the defendants would have gone on; nor do they compel a finding that they would not have gone on, had they known all the facts. Their obligation to Harris, if it existed at all, may

(146 N.E.)

mons began. If the judge took the view that Simmons and Shapinsky were tools of Kaufman; that Shapinsky was undisclosed principal for Simmons, but also, and as part of a single transaction, undisclosed agent for Kaufman as undisclosed principal one step further removed; that the defendants were in earnest in refusing to sell to Kaufman and would have refused to deal with Simmons had they known he was acting remotely for Kaufman, then he was wrong in refusing the defendants', requests.

dealing for himself, yet if he has been in no manner injured he cannot object to being made responsible to the principal." Devens, J., in Sheehan v. Marston, 132 Mass. 161, 162, citing Selkirk v. Cobb, 13 Gray, 313. The judge in the case before us has found that Shapinsky was Simmon's principal, and that Shapinsky accepted the goods; and he may have reached this conclusion because the evidence satisfied him that, whatever Sydeman once told Kaufman, he was really 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:

"You have a right to the benefit you contemplate from the character, credit and substance of the person with whom you contract."

The remark is obiter, but it has been used to support decisions that no contract is made where one who has refused to deal with a particular person has gone through the form of contracting with a third party who turns out to be an agent for the repudiated person as undisclosed principal, and who has concealed that fact. Winchester v. Howard, 97 Mass. 303, 93 Am. Dec. 93; Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Chapman, J. in Winchester v. Howard, supra, stated as law that:

"A man's right to refuse to enter into a contract is absolute, he is not obliged to submit the validity of his reasons to a court or jury."

[2] It follows, logically, that one cannot be held to have contracted with a person whom he has refused, to accept as party to a contract. Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805, 55 Am. Rep. 439; Gordon v. Street, [1899] 2 Q. B. 641; Cundy v. Lindsay, 3 App. Cas. 459. The introduction of an undisclosed principal is not to be permitted to defeat this right. Courts of equity refuse to order specific performance when an agreement has been made with an agent who is acting for the objectionable person as undisclosed principal. Archer v. Stone, 78 Law Times, 34; Kurinsky v. Lynch, 201 Mass. 28, 87 N. E. 70.

[3] A different situation arises, however, when one, who deals with an agent for an undisclosed principal, is in fact indifferent about the real party in interest. Smith v. Wheatcraft, 9 Ch. Div. 223. In such circumstances a contract is really made. The principle is stated by Pothier, Law of Obligations, p. 1, c. 1, § 19:

"When the consideration of the person with whom I suppose myself to contract, forms no ingredient at the contract, and I should equally

for himself as he said or for some one else.

If he was satisfied of this, he was acting properly in refusing the defendants'' requests, and in finding for the plaintiff.

[4] Our difficulty arises from being unable to say from the report upon which theory he acted. In Clarke v. Massachusetts Title Ins. Co., 214 Mass. 31, 100 N. E. 1089, and De Young v. Andrews Co., 214 Mass. 47, 100 N. E. 1080, we held that a refusal to give a request to which a party was entitled was error requiring a new trial, although the finding made could be sustained on the evidence. John H. Hetherington & Sons v. William Firth Co., 210 Mass. 8, 17, 18, 19, 95 N. E. 961. The defendants were entitled to the rulings requested in a possible view of the evidence; and, though the finding may have been right, we are unable, on the report, so to determine. As a result, the order must be, finding set aside and a new trial to be had.

So ordered.

THRELKELD v. BOSTON ELEVATED RY. CO.

(Supreme

Carriers

Judicial Court of Massachusetts.
Suffolk. Jan. 30, 1925.)

347 (4)-Evidence held to warrant finding that passenger was justified in assuming she could rightfully board train from unloading platform, so that direction of verdict for carrier was improper.

In passenger's action for injuries received while attempting to board train, evidence held sufficient to warrant jury finding that plaintiff, having alighted on unloading platform, was justified in assuming she could rightfully again board train when doorway was free of leaving passengers, and that she was invited to do so, so that direction of verdict for defendant was improper.

Exceptions from Superior Court, Suffolk County; W. H. Whiting, Judge.

Action of tort by Katherine Threlkeld

have made the contract with any other per- against the Boston Elevated Railway Com

son, 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

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 evidence that the plaintiff was warned by signs or otherwise that she should not board the train for Cambridge from the platform where she stood when she attempted to board the car. At the conclusion of the evidence the judge directed a verdict for the defendant, and the case is before this court on the exceptions of the plaintiff thereto.

PIERCE, J. This is an action of tort to recover damages for personal injuries, received by the plaintiff while attempting to board a train of the defendant company in the Park Street under station. The plaintiff became a passenger at the South Station, and rode on one of the tunnel trains from that 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 continue on to Harvard Square, Cambridge. The train upon which she rode from the South Station left the station for Harvard Square. The plaintiff remained on the platform where she alighted until the arrival of the next train. When that train stopped the door on the side of the platform upon which the plaintiff was standing was opened. The passengers passed out and the plaintiff undertook to board the train through the open door. When she had one foot inside the door and was bringing her other foot in, the door was closed, caught her foot, and she was thrown to the floor inside the car, breaking her wrist.

There was evidence that there were two platforms at the station where the plaintiff boarded the car in which she received her injury, one a loading platform and the other an unloading platform. The platform on

to prevent passengers from boarding trains from the unloading platform, which evidence was received subject to the exception of the plaintiff, the only question for decision is, Was the evidence sufficient to warrant a jury finding that the plaintiff was justified in assuming she could rightfully again board the train when the doorway was free of leaving passengers? We think the jury warrantably could find an invitation to the plaintiff to do so; and the plaintiff accepted the invitation with all the rights of a passenger. The facts distinguish the case at bar from Hillman v. Boston Elevated Railway, 207 Mass. 478, 93 N. E. 653, 32 L. R. A. (N. S.) 198; Youngerman v. New York, New Haven & Hartford Railroad, 223 Mass. 29, 111 N. E. 607; Hyams v. Boston Elevated Railway, 216 Mass. 560, 104 N. E. 370, and Rhoades v. Boston Elevated Railway, 232 Mass. 361, 122 N. E. 194. Exceptions sustained.

(146 N.E.)

(239 N. Y. 248)
Appeal from Supreme Court, Appellate Di-
FRED S. JAMES & CO. v. SECOND RUS- vision, First Department.
SIAN INS. CO.

(Court of Appeals of New York. Jan. 21, 1925.)

I. Corporations ~617(5)—Death of corporation answering complaint no defense.

Persons in charge of assets of defunct corporation may place on record suggestion of its death, stay progress of suit against it, and even vacate process, but corporation, having answered complaint, cannot allege its death as defense.

2. Insurance 26-International law

Action by Fred S. James & Co. against the Second Russian Insurance Company. From an order of the Appellate Division (210 App. Div. 82, 205 N. Y. S. 472), affirming an order of the Special Term, denying defendant's motion that plaintiff be directed to reply to its defenses, defendant appeals by permission. Order affirmed, and certified questions an

swered.

See, also, 208 App. Div. 141, 203 N. Y. S. 232; App. Div. 206 N. Y. S. 905. The Appellate Division certified the fol10-lowing questions:

Russian insurance company not relieved from liability to suit by decree of Russian government nationalizing insurance companies.

Decree of Russian Soviet government nationalizing insurance companies has no effect in United States, unless, possibly, to such extent as justice and public policy require, and hence does not relieve Russian insurance company, qualifying under Insurance Law, §§ 27, 28, to do business in New York, from liability to be sued.

3. Insurance 679-International law 10 -Liability of Russian insurance company on reinsurance policy held not extinguished by Soviet decree canceling debts of nationalized companies.

Liability of Russian insurance company, having assets available for seizure in New York, on reinsurance policy, held not extinguished by Russian Soviet decree canceling or releasing debts of nationalized insurance companies, such decree not being bankruptcy decree, nor of unlimited extraterritorial effect if it were.

4. International law 10-Decree of unrecognized government confiscating assets of insurance companies not enforced to prejudice of citizens of United States or friendly pow

ers.

Neither comity nor públic policy requires enforcement of mandate of another government, confiscating assets of nationalized insurance companies for its benefit, to prejudice of citizens of United States or any friendly power, especially where it has been denied recognition.

(1) Is the new matter contained in the first separate defense set out in the answer, if true and not avoided in some manner, sufficient in law as a defense to the causes of action?

(2) Is the new matter contained in the second separate defense set out in the answer, if true and not avoided in some manner, sufficient in law as a defense to the causes of action?

(3) Is the new matter contained in the third separate defense set out in the answer, if true and not avoided in some manner, sufficient in law as a defense to the causes of action?

(4) Is the new matter contained in the fourth separate defense set out in the answer, if true and not avoided in some manner, sufficient in law as a defense to the causes of action?

Albert Massey and Michael S. Gleason both of New York City, for appellant.

Carl Sherman, Atty. Gen. (Edward G. Griffin, of Albany, and J. Du Pratt White, of New York City, of counsel), for Superintendent of Insurance of State of New York.

David Rumsey and Louis J. Wolff, both of New York City, for respondent.

John W. Hogan, of Syracuse, and Paul Bonynge and Wendell P. Barker, both of New York City, for Anchor Ins. Co. of New York and others, amici curiæ.

Frederick B. Campbell and Paul C. Whipp, both of New York City, amici curiæ.

B. F. Sturgis and Hartwell Cabell, both of New York City, for John F. Murphy, amici curiæ.

CARDOZO, J. The Eagle, Star & British Dominions Insurance Company, Limited, 5. International law 10-Trade agreement plaintiff's assignor, entered into contracts or between Great Britain and Russia held not treaties with the defendant, Second Russian to have extinguished rights of action of for- Insurance Company, a Russian corporation, mer's nationals against Russian corporations. by which the latter reinsured the former's Trade agreement of 1921 between Great marine risks to the extent therein stated. Britain and Soviet Russia, declaring principles Losses were sustained, and the British comon which general peace treaty will be conclud-pany attempted to recover them from its Rused, if made, held not to have extinguished, by force of eminent domain, rights of action of British nationals against Russian corporations, nor put British government in place of nationalized Russian corporation as substituted debtor.

146 N.E.-24

sian reinsurer. The demand having met with a refusal, the cause of action was assigned to the plaintiff, a domestic corporation. The defendant, which has appeared generally, admits that it is engaged in business in New

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