Brigham v. Herrick , 173 Mass. 460 ( 1899 )

Lathrop, J.

The defendant contended that he was acting as the agent of one Spaulding, and that therefore he was not liable. There was, however, evidence in the case that the plaintiff did not know that the defendant was an agent until after he had performed the work for which he sues. In Welch v. Goodwin, 123 Mass. 71, it was said by this court, “ One who acts as the agent of an undisclosed principal may be treated as principal by the party with whom he deals.” See also Hutchinson v. Wheeler, 3 Allen, 577; Southard v. Sturtevant, 109 Mass. 390 ; Bartlett v. Raymond, 139 Mass. 275; Wheeler v. Reed, 36 Ill. 81, 90; Royce v. Allen, 28 Vt. 234; Mauri v. Heffernan, 13 Johns. 58; Allen v. Rostain, 11 S. & R. 362, 375.

Treating, then, the defendant as a principal, we find no difficulty in reaching thé conclusion that the jury were warranted in finding the defendant liable. While there was no direct conversation between the plaintiff and the defendant, there was evidence which would warrant the jury in finding that the defendant agreed that the plaintiff should remain on the work, and that he would pay him. The evidence goes further, and shows that the defendant consulted with the plaintiff in regard to the work, and that the defendant personally paid the plaintiff $50.

It is contended that the conversation about retaining the plaintiff and promising to pay him was had with one Snow, the city engineer of Brockton, and that Snow had no authority to communicate to the plaintiff what the defendant said. While Snow testified that the defendant did not say anything to him about communicating with the plaintiff, we are of opinion, on all the evidence in the case, that the jury might infer that the defendant understood and intended that what he said should be communicated by Snow to the plaintiff, and in effect allowed Snow to be a messenger for that purpose.

It is further contended that, as the contract between the plaintiff and Cates on the one side and the city of Brockton on the other contained an article to the effect that the contract should not be assigned without permission of the city, the plaintiff in superintending the work was doing no more than he was obliged to do by his contract. See Pool v. Boston, 5 Cush. 219. If the city in this case had, while refusing to give permission to an assignment of the contract, made a new contract with the plaintiff and his partner, which operated as a rescission of the old contract, the new contract would be founded upon a sufficient consideration. Rollins v. Marsh, 128 Mass. 116. But, whatever might be the rights of the city, if it were the defendant in this case, it seems to us clear that the present defendant is in no position to avail himself of them. The plaintiff at the time of the agreement with the defendant had already assigned his interest to Cates, and Cates had assigned the entire interest under the contract to the defendant or his principal. The defendant carried on the work and was paid by the city; and if the defendant saw fit to employ the plaintiff to superintend the work without disclosing his agency, we see no reason why he should not pay him. See Allen v. Leonard, 16 Gray, 202.

.Exceptions overruled.