Bugg, C.J.
These two actions of contract were tried together. The one in which the Friend Lumber Co. Inc., hereafter termed the Friend Company, is plaintiff will be called the first .case and the one in which the Armstrong Building Finish Co., hereafter termed the Armstrong Company, is plaintiff will be called the second case.
1. The first case is an action upon an account annexed, [367]*367consisting of ten items of charge for lumber, a cash credit of $100, and an item of interest from the date of demand to the date of the writ; the balance therein alleged to be due was.$2,238.33. Verdict was returned for the plaintiff. There was no controversy at the trial that the plaintiff did not furnish the lumber charged and deliver it at the so called Walk Hill Street property. Confessedly this was done pursuant to orders given by one Sandler. The controversy was whether this was an independent enterprise of Sandler or whether the defendant had authorized or ratified the action of Sandler in ordering the lumber. At the times here material, Sandler, one Citron, and one Albert were the directors and sole stockholders of the Armstrong Company, Sandler being president, and Albert treasurer. All the business of the corporation was done by unanimous vote of the directors and no one of them had actual authority to close contracts. An officer of. the Friend Company was permitted to testify (1) that Sandler said, when demand was made for payment of the Friend Company’s bill, that he would give as collateral a mortgage on the Walk Hill property that they' were building provided terms could be agreed upon and that he would have to take it up with the other officers of the Armstrong Company, and further (2) that later on going to the office of the Armstrong Company he saw Citron and Albert who said that they would take the matter up with Sandler and let the witness know later and that their corporation had made no money on the Walk Hill property. The statements of Sandler were admissible as tending to show that he purported to be acting for the Armstrong Company as principal and not for himself. They were admissible not to prove the truth of the assertions of the alleged- agent but to show that he stated that he was acting as agent and not as the principal in the transaction. Jefferds v. Alvard, 151 Mass. 94. Estes v. Aaron, 227 Mass. 96, 99. Wilson v. Davison, 242 Mass. 237, 242. This is quite different from an attempt to prove by evidence of statements of the agent the extent and nature of his authority; that is not permissible. Treasurer & Receiver General v. Macdale Warehouse Co. 262 Mass. 588, 593. The evi[368]*368dence of the conversation with Citron and Albert was admissible as bearing upon the liability of the defendant. These two with Sandler constituted the stockholders and directors of the defendant. Conversation and conduct of all three indicated the Armstrong • Company as the principal in the transaction and were competent. North Anson Lumber Co. v. Smith, 209 Mass. 333, 337-338. Vigeant v. Jeanne D’Arc Credit Union, 271 Mass. 479.
Testimony of an officer of the Friend Company was admitted to the effect that having called the Armstrong Company on the telephone he talked with some one other than Sandler saying that he would buy building finish provided the prices were as low as prices of others and that the orders thus given should go as a credit on the account of the Friend Company against the Armstrong Company, and that he bought the building finish on these conditions. This conversation was competent as tending to show that he believed the sales of lumber by the Friend Company were to the Armstrong Company and not to Sandler, and that he acted in good faith in the belief that he was dealing with the Armstrong Company through an authorized agent. Mussey v. Beecher, 3 Cush. 511, 516. Bascombe v. Inferrera, 271 Mass. 296, 299. Cases like Dorchester Trust Co. v. Casey, 268 Mass. 494, are quite distinguishable.
There was no error in the refusal of the trial judge to admit in cross-examination of the witness Thistle statements made by him in conference at the bench. The judge knew what those statements were. The offer of proof does not tend to show bias or interest on the part of the witness. It was a matter resting in the sound discretion of the judge and that discretion appears to have been wisely exercised. Jennings v. Rooney, 183 Mass. 577, 579. Commonwealth v. Klosek, 262 Mass. 416, 419.
The motion of the Armstrong Company for a directed verdict in its favor was denied rightly. There was ample evidence that the other two stockholders and directors of that company knew that Sandler had purchased lumber for it from the Friend Company. If such purchases exceeded his authority, it was their duty as directors to renounce the [369]*369transaction in behalf of their company and failure to do so indicates ratification. Thayer v. White, 12 Met. 343. Brigham v. Peters, 1 Gray, 139, 147. Lajoie v. Milliken, 242 Mass. 508, 525-526. Boice-Perrine Co. v. Kelley, 243 Mass. 327, 330-331.
There was no error in the charge to the jury in respect to ostensible authority of Sandler to act for the Armstrong Company. In simple language capable of being easily understood the controlling principles of law were stated with sufficient accuracy. It is not necessary to go over it in detail. It need be said only that no reversible error is disclosed.
2. In the second case the judge directed a verdict in favor of the Armstrong Company against the Friend Company. No exception was saved. The Friend Company seasonably filed a motion for a new trial on the grounds that the verdict was (a) against the evidence and (b) against the weight of the evidence. It also filed a motion to set aside the verdict. There was failure to comply with Rule 48 of the Superior Court (1923) in that no copy of the motion was delivered or mailed to the adverse counsel on the day on which it was filed. Six days later such copy was so mailed. Motion was made to extend the time for the giving of such notice. This motion was granted. In this there was no error. It must be assumed that sufficient cause for granting it was proved to satisfy the mind of the judge. Whitney v. Hunt-Spiller Manuf. Corp. 218 Mass. 318. Boston Morris Plan Co. v. Barrett, 272 Mass. 487, 490.
The judge filed a statement in these words so far as material: “. . . I allow the defendant’s motion for a new trial and to set aside the verdict. . . . My reasons . . . are as follows: ... It was admitted that the defendant owed the amount of the verdict. It appears, however, from undisputed evidence, that the verdict in the cross suit for the Friend Lumber Company was for a balance due from the Armstrong Company after making allowance for the amount of the verdict against the Friend Company. It would be a manifest injustice to permit the verdict which was ordered by consent of parties to stand and thereby to allow the Armstrong Company to obtain the double credit. [370]*370I allowed all these motions in the exercise of what I considered as sound discretion.”
It is provided by G. L. c.
Free access — add to your briefcase to read the full text and ask questions with AI
Bugg, C.J.
These two actions of contract were tried together. The one in which the Friend Lumber Co. Inc., hereafter termed the Friend Company, is plaintiff will be called the first .case and the one in which the Armstrong Building Finish Co., hereafter termed the Armstrong Company, is plaintiff will be called the second case.
1. The first case is an action upon an account annexed, [367]*367consisting of ten items of charge for lumber, a cash credit of $100, and an item of interest from the date of demand to the date of the writ; the balance therein alleged to be due was.$2,238.33. Verdict was returned for the plaintiff. There was no controversy at the trial that the plaintiff did not furnish the lumber charged and deliver it at the so called Walk Hill Street property. Confessedly this was done pursuant to orders given by one Sandler. The controversy was whether this was an independent enterprise of Sandler or whether the defendant had authorized or ratified the action of Sandler in ordering the lumber. At the times here material, Sandler, one Citron, and one Albert were the directors and sole stockholders of the Armstrong Company, Sandler being president, and Albert treasurer. All the business of the corporation was done by unanimous vote of the directors and no one of them had actual authority to close contracts. An officer of. the Friend Company was permitted to testify (1) that Sandler said, when demand was made for payment of the Friend Company’s bill, that he would give as collateral a mortgage on the Walk Hill property that they' were building provided terms could be agreed upon and that he would have to take it up with the other officers of the Armstrong Company, and further (2) that later on going to the office of the Armstrong Company he saw Citron and Albert who said that they would take the matter up with Sandler and let the witness know later and that their corporation had made no money on the Walk Hill property. The statements of Sandler were admissible as tending to show that he purported to be acting for the Armstrong Company as principal and not for himself. They were admissible not to prove the truth of the assertions of the alleged- agent but to show that he stated that he was acting as agent and not as the principal in the transaction. Jefferds v. Alvard, 151 Mass. 94. Estes v. Aaron, 227 Mass. 96, 99. Wilson v. Davison, 242 Mass. 237, 242. This is quite different from an attempt to prove by evidence of statements of the agent the extent and nature of his authority; that is not permissible. Treasurer & Receiver General v. Macdale Warehouse Co. 262 Mass. 588, 593. The evi[368]*368dence of the conversation with Citron and Albert was admissible as bearing upon the liability of the defendant. These two with Sandler constituted the stockholders and directors of the defendant. Conversation and conduct of all three indicated the Armstrong • Company as the principal in the transaction and were competent. North Anson Lumber Co. v. Smith, 209 Mass. 333, 337-338. Vigeant v. Jeanne D’Arc Credit Union, 271 Mass. 479.
Testimony of an officer of the Friend Company was admitted to the effect that having called the Armstrong Company on the telephone he talked with some one other than Sandler saying that he would buy building finish provided the prices were as low as prices of others and that the orders thus given should go as a credit on the account of the Friend Company against the Armstrong Company, and that he bought the building finish on these conditions. This conversation was competent as tending to show that he believed the sales of lumber by the Friend Company were to the Armstrong Company and not to Sandler, and that he acted in good faith in the belief that he was dealing with the Armstrong Company through an authorized agent. Mussey v. Beecher, 3 Cush. 511, 516. Bascombe v. Inferrera, 271 Mass. 296, 299. Cases like Dorchester Trust Co. v. Casey, 268 Mass. 494, are quite distinguishable.
There was no error in the refusal of the trial judge to admit in cross-examination of the witness Thistle statements made by him in conference at the bench. The judge knew what those statements were. The offer of proof does not tend to show bias or interest on the part of the witness. It was a matter resting in the sound discretion of the judge and that discretion appears to have been wisely exercised. Jennings v. Rooney, 183 Mass. 577, 579. Commonwealth v. Klosek, 262 Mass. 416, 419.
The motion of the Armstrong Company for a directed verdict in its favor was denied rightly. There was ample evidence that the other two stockholders and directors of that company knew that Sandler had purchased lumber for it from the Friend Company. If such purchases exceeded his authority, it was their duty as directors to renounce the [369]*369transaction in behalf of their company and failure to do so indicates ratification. Thayer v. White, 12 Met. 343. Brigham v. Peters, 1 Gray, 139, 147. Lajoie v. Milliken, 242 Mass. 508, 525-526. Boice-Perrine Co. v. Kelley, 243 Mass. 327, 330-331.
There was no error in the charge to the jury in respect to ostensible authority of Sandler to act for the Armstrong Company. In simple language capable of being easily understood the controlling principles of law were stated with sufficient accuracy. It is not necessary to go over it in detail. It need be said only that no reversible error is disclosed.
2. In the second case the judge directed a verdict in favor of the Armstrong Company against the Friend Company. No exception was saved. The Friend Company seasonably filed a motion for a new trial on the grounds that the verdict was (a) against the evidence and (b) against the weight of the evidence. It also filed a motion to set aside the verdict. There was failure to comply with Rule 48 of the Superior Court (1923) in that no copy of the motion was delivered or mailed to the adverse counsel on the day on which it was filed. Six days later such copy was so mailed. Motion was made to extend the time for the giving of such notice. This motion was granted. In this there was no error. It must be assumed that sufficient cause for granting it was proved to satisfy the mind of the judge. Whitney v. Hunt-Spiller Manuf. Corp. 218 Mass. 318. Boston Morris Plan Co. v. Barrett, 272 Mass. 487, 490.
The judge filed a statement in these words so far as material: “. . . I allow the defendant’s motion for a new trial and to set aside the verdict. . . . My reasons . . . are as follows: ... It was admitted that the defendant owed the amount of the verdict. It appears, however, from undisputed evidence, that the verdict in the cross suit for the Friend Lumber Company was for a balance due from the Armstrong Company after making allowance for the amount of the verdict against the Friend Company. It would be a manifest injustice to permit the verdict which was ordered by consent of parties to stand and thereby to allow the Armstrong Company to obtain the double credit. [370]*370I allowed all these motions in the exercise of what I considered as sound discretion.”
It is provided by G. L. c. 231 in § 127 that the judge may “set aside the verdict in a civil action and order a new trial for any cause for which a new trial may by law be granted; but a verdict shall not be set aside except on written motion by a party to the cause, stating the reasons relied upon in its support . . .”; and in § 128, “Whenever a verdict is set aside and a new trial granted under the preceding section,'the justice granting the motion for the new trial shall file a statement setting forth fully the grounds upon which the motion is granted . . . .” The requirement of § 127 means that the reasons stated in the motion alone may be considered by the judge and upon those his decision must be based. Peirson v. Boston Elevated Railway, 191 Mass. 223, 229-230. McDonnell, petitioner, 197 Mass. 252, 255. Parker v. Lewis J. Bird Co. 221 Mass. 422, 426. The provisions of these two sections are a constitutional exercise of power by the General Court and do not impair the essentials of the right to trial by jury secured by the fundamental law. Peirson v. Boston Elevated Railway, 191 Mass. 223, 230-231. Opinion of the Justices, 207 Mass. 606. Edwards v. Willey, 218 Mass. 363, 365. Anti v. Boston Elevated Railway, 247 Mass. 1, 4-5. These sections narrow the earlier power of the trial judge to set aside a verdict upon his own motion for any causé allowed by law. Ellis v. Ginsburg, 163 Mass. 143.
It is the general principle that a defendant who has a claim against one who is suing him may pursue his remedy as he chooses. He may bring an action to enforce his claim. He may rely upon set-off or recoupment, if applicable. He cannot be compelled to adopt one course rather than the other. Minor v. Walter, 17 Mass. 236. Cary v. Bancroft, 14 Pick. 315. Dehon v. Stetson, 9 Met. 341. Gilmore v. Williams, 162 Mass. 351. Bowen, Inc. v. G. R. Armstrong Manufacturers’ Supplies, Inc. 241 Mass. 444, 448, and cases cited. The statement of reasons for setting aside the verdict filed by the trial judge does not mention specifically any one of those stated in the motion. But its tenor is [371]*371plain. The statement means that the Armstrong Company had already accepted a credit on the account in the first case, being the action against it, for the entire amount claimed to be due to it from the Friend Company in the second case and that by some mistake, misapprehension or misunderstanding that fact was overlooked when this second case was sent to the jury for a verdict. Manifestly if that were so, a. verdict for the plaintiff in this second case would be against the evidence and against the weight of the evidence. There is nothing in the decisions just cited requiring a contrary result. Since the cases at bar were tried together, the evidence was to be considered in either or both cases so far as pertinent to the issues. It must be presumed that there was sufficient basis in fact to support the statement filed by the judge. The trial in this case proceeded upon a summary of his understanding made by the judge in open court to the effect that the Friend Company admitted that it owed the amount claimed by the Armstrong Company “in some way . . . either by way of paying it in cash or else by a credit.” That admission was in terms broad enough to apply to either case. That expression by the judge of his understanding was not challenged as to its correctness by either party. It must be accepted as true. The ordering of the verdict in favor of the Armstrong Company must have been grounded on the belief of the judge that the amount admitted to be due had not been credited on the account in the other action. When it came to his attention that that amount had already been credited in the account which formed the basis of the other action, plainly the ordering of that verdict was against the evidence. It is of no consequence that the declaration in its account annexed in the other action did not show this credit. If it was in truth so credited that neither charges nor credits to that aggregate amount appeared on the account annexed, the judge could not rightly shut his eyes to that fact. Shields v. Nathans, 268 Mass. 360. Although not expressed with the utmost technical conformity to the terms of said §§ 127, 128, the meaning of the statement filed by the judge is not open to misconstruction. It signi[372]*372fies that in view of all the circumstances the verdict which he had ordered had no real support in evidence and ought not to stand as the basis of a judgment in a court of this Commonwealth. Any possible misconstruction would have been avoided if the conclusion had been stated in unequivocal terms that the motion was granted on the second ground therein specified. But that conclusion is inevitable from the facts recited, and is their unmistakable import.
There is nothing at variance with this result in Wright v. Apikian, 270 Mass. 302, and cases there reviewed, or in Dziegiel v. Westford, 274 Mass. 291. In those cases the trial-judge in attempting to set aside the verdict went outside the grounds alleged in the motion or made an erroneous ruling of law or otherwise failed to comply with the essential requirements of said §§ 127 and 128.
Exceptions overruled in both cases.