Reid v. Miller , 205 Mass. 80 ( 1910 )

Knowlton, C. J.

In this action a husband and wife were sued jointly to recover the price of stone used in the construction of a house on land of the female defendant. At the close of the evidence the judge was asked to rule that there could be no recovery against this defendant. This ruling was refused, and the verdict was against her alone. The evidence showed that the husband made a contract or contracts under which the stone were furnished, and it was not disputed that the stone were used in the construction of the cellar wall of the house. This defendant knew that the house was being erected, and knew in a general way what was being done there. The question is whether, from this evidence, the jury might infer that the work was being done by her authority. If it was done by her authority, and nothing more appeared, the law would imply a promise to pay for it.

In Beston v. Amadon, 172 Mass. 84, 86, this court quoted with approval the language of Mr. Justice Hoar in Westgate v. Munroe, 100 Mass. 227, that the court entertained “no doubt that if a person, with the knowledge of the owner, performs valuable services upon the separate property of a married woman, it is evidence of an employment by her, and may authorize a jury to find a contract by her to pay for it.” It is a fair inference that ordinarily a person will not perform valuable services upon the real estate of another person without authority from the owner. The fact of performance of such services well warrants an inference of authority.

The ultimate fact to be ascertained in such cases is whether there was an employment from which arises, either expressly or by implication, an obligation to pay. The facts in the present case include everything that was shown in the case first referred to, except that in that case a payment was made by the defendant’s husband, from her money, for some painting on a part of the place where they lived, upon which the greenhouse was erected by her son in law, for material used in the construction of which the plaintiff was allowed to recover. As the payment for the painting was not made by the person who contracted the debt for which the suit was brought, and as it was not for the painting of any part of the greenhouse, this portion of the evidence seems to have been of but little consequence. In every such case all the facts are to be considered, to ascertain whether there was or was not a contract, express or implied.

In the present case the jury might have disbelieved the testimony of the husband that this defendant objected to the building of the house. It is plain from the evidence that he was managing that part of her property, — a fact which was deemed important in Arnold v. Spurr, 130 Mass. 347. The relation of husband and wife that existed between this manager and the owner of the land is a fact of significance, in connection with the nature of the work that was going on. There is a broad field for legitimate inference by a jury from facts like these. Besides the cases cited above, see Dyer v. Swift, 154 Mass. 159, Wheaton v. Trimble, 145 Mass. 345, and Gannon v. Shepard, 156 Mass. 355. We are of opinion that the jury were rightly permitted to find that the husband was the wife’s agent in procuring the material for this important addition to her real estate.

The defendant also asked for a ruling that the plaintiff should be required to elect which defendant he would proceed against, and also to elect which of his counts he would proceed" upon. These rulings were refused.

As to the first, the judge instructed the jury that the plaintiff could recover against only one of the defendants. There was evidence that would have warranted a finding against either of them, although they were not liable jointly. Under these circumstances, the instruction to the jury was sufficient. Under our statute, which permits a verdict in favor of one and against another of two defendants sued jointly, an election between the two should not be required upon doubtful evidence, unless the grounds of recovery relied upon are such that the plaintiff cannot consistently pursue both at the same time. R. L. c. 177, § 6. Taft v. Church, 162 Mass. 527, 533.

The different counts were not so at variance with one another that the plaintiff should be precluded from relying upon them to meet such a view of the evidence as the jury might take. It is true that one dealing with an agent of an undisclosed principal cannot hold the principal, if, after full knowledge of the principal’s liability, he elects to rely upon the agent. But his failure to give up the claim upon the agent before the facts are fully ascertained does not bar his recovery from the principal. Raymond v. Crown & Eagle Mills, 2 Met. 319. Dyer v. Swift, 154 Mass. 159. Gardner v. Bean, 124 Mass. 347.

In the present case it does not appear that the plaintiff attempted to enforce a claim upon Flaherty, after he was fully informed of the facts. As between this defendant and her husband, it was uncertain which was the principal and the real proprietor of the business that was going on.

No request was made for an instruction that this defendant could not be held upon the third count, and the question as to ¡that count cannot now be raised for the first time under a general verdict for the plaintiff, upon evidence which warranted the verdict on some of the counts. Under the judge’s charge it will be assumed that the verdict was found upon the count or counts to which the evidence was applicable.

The general exception to the charge raises no questions except as to those portions of it which were inconsistent with the rulings requested. Savage v. Marlborough Street Railway, 186 Mass. 203.

Exceptions overruled.