Remick v. Sandford

118 Mass. 102, 1875 Mass. LEXIS 317

Opinion

Morton, J.

At the trial the plaintiff relied upon a written paper usually called a “ sold note,” signed by the broker through whom the sale of the goods sued for was negotiated. If the broker was authorized by the defendants to sign this note, or if, after he signed it, the defendants accepted and adopted it as their contract, it would be binding on them, and it would not be competent for them to prove by paroi any terms of the sale which differ from those expressed in the written contract. Cabot v. Winsor, 1 Allen, 546. But it was for the jury to determine whether the broker had such authority, or whether the defendants accepted the sold note as their contract, and upon these questions paroi testimony was competent. The evidence stated in the report shows that the broker was employed by the plaintiff to sell the goods in question, and that he sold them to the defendants, but it does not tend to show that he was the general agent of the defendants, or that he had any authority to act for them except such as is implied from the fact that they dealt with him as a broker in this single contract of sale. By thus dealing with him, they gave him authority, as broker, to sign a memorandum of the contract actually made, which would be binding upon them. But his authority was strictly limited to this. He could reduce to writing and sign the contract into which the defendants entered, but not a different contract. And for the purpose of showing that the contract signed by the broker was not within his authority, it was competent for them to show by paroi testimony that the contract which they made was different. Coddington v. Goddard, 16 Gray, 436. Dodd v. Farlow, 11 Allen, 426. It follows that the evidence introduced by the defendants to show that the sale to them was a sale by sample should have been submitted to the

The ground taken by the plaintiff, that the defendants after the sale accepted and adopted the sold note as their contract, presents a question of fact and not of law. They did not accept it in writing; the question whether they accepted it orally is a question of fact, depending upon conflicting testimony, and should have been submitted to the jury. The case therefore must stand for trial.

The only other question is whether there was sufficient evidence to go to the jury, upon the issue of fraudulent representations raised by the answer. But as there must be a new trial upon other grounds, at which the evidence will probably be different from that given at the former trial, it is not necessary oi useful to discuss this question. Case to stand for trial.