Cummings v. Sargent

50 Mass. 172

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1845
• Status: Published

Opinion

Assumpsit for gin, brandy, rum, wine and sugar, sold and delivered to the defendants. There was also a count for the same articles sold and delivered to Amos Russell, as the agent of the defendants.

The defendants contended that this instrument did not authorize Russell to make said purchase on their credit. But the judge ruled otherwise, and instructed the jury that the defendants were liable in this action. A verdict was returned for the plaintiffs, and exceptions were filed by the defendants.

Authority was not given to Russell, by the letter of attorney, to purchase any articles, to an indefinite extent, on the credit of the defendants; Story on Agency, §§ 77, 78; certainly not liquors and sugars to be retailed in a bar room. The general authority to “transact all business pertaining to said house and farm,” was qualified and restricted, as to purchases, by these words; “ under this head we authorize and empower the said Russell to purchase, use and vend all necessary provisions for said house,” &c. They thus expressly limited his power of purchasing in their names to the purchase of provisions for the house. Expressio unius est exclusio alterius. Chit. Con. (5th Amer. ed.) 88. The only question then is, whether liquors and sugars, to be used in a bar room, are provisions, within the meaning of the letter of attorney. Nothing in that instrument implies that the defendants intended that Russell should retail mixed liquors on their account.

The Court overruled the exceptions, and ordered judgment to be rendered on the verdict for the plaintiffs.