Ford v. Linehan , 146 Mass. 283 ( 1888 )

Morton, C. J.

The written contract for the work which is sued for was signed by the son of the defendant; but if the plaintiff can prove that in contracting for the work the son was acting as the agent of the defendant, this action can be maintained. Whether he was so acting, is a question of fact for the jury, and we are of opinion that there was evidence at the trial which was properly submitted to them upon this issue.

It appeared that the defendant was seventy-three years old, and had been confined to his house for five years by rheumatism ; that he was a man of considerable property; that he was the owner of the lot in the cemetery on which the work was done ; and that before the work was begun he signed an application for a permit to do it, addressed to the superintendent of the cemetery. There was evidence tending to show that the son had very little property, that he told the defendant of his contract with the plaintiff, and conferred with the defendant from time to time during the progress of the,work; that he was an only son, and his father’s general agent for the transaction of all his business affairs; that the defendant, before he was taken-sick, had in his mind the idea of putting curbing about his lot, and consulted with his wife about it; and that neither during the work nor after it was completed was anything said between the father and the son to show that it was intended by the latter as a gift to his father. The circumstances of the parties make it very improbable that he would or could make so large a gift. . •

All the evidence points to the inference that the son was acting for his father, and that both so understood it; and we think the jury might fairly draw this inference, notwithstanding the testimony of the defendant and his son to the contrary. They saw the witnesses, and could best judge of the credit to which they were entitled. Exceptions overruled.