Omaha Flour Mills Co. v. Santarpio

Crosby, J.

This is an action of contract to recover damages for the breach of a written agreement, entered into on September 21, 1920. The only witness at the trial was one Wedge, a salesman of the plaintiff, who testified that the defendant was a baker with whom he had had business dealings for about four or five years previous to September 21, 1920; that on that date he called at the defendant’s place of business and requested bim to buy some flour; that after further conversation the defendant said to him, “All right. I will take a car.” The brand and size of the packages having been agreed upon, the witness thereupon took out his order book and made out the contract, the defendant standing at his elbow; before signing the witness said to the defendant, “I’ll sign this, Frank,” and then signed "Omaha Flour Mills Co. by A. J. Wedge” in the place for the seller’s name; and Frank Santarpio in the place for the buyer’s name; that while he was writing, the defendant was standing by his side. He further testified that he thought the defendant could not read nor write, having been told so; that when he had previous business dealings with the defendant while representing the plaintiff, or the Washburn-Crosby Company, the same form of written contract as Exhibit 1 was made out by the witness, and that he filled in the blank spaces; that he had sold the defendant about two thousand barrels of flour, covered by four to six contracts in the same form as that upon which this action is brought; that when the earlier sales were made he filled in all the blank spaces except on one occasion when the signature of the defendant was written by the latter’s twelve year old son at the request of the witness, in the presence of the defendant. Copies of these contracts were admitted in evidence.

The witness also testified that in making all the contracts with the defendant he had followed his usual practice of preparing four copies: a blue original for the mill, a yellow copy for the *377 purchaser, a white one to be kept in the branch office of the plaintiff in Boston, and a tissue which remains in the salesman’s book. At the trial the plaintiff offered in evidence the contract, Exhibit 1, which is annexed to the declaration and appears to be the original. This evidence was excluded by the trial judge, as was the yellow copy, given by the witness to the defendant. A verdict was directed for the defendant on the ground that the plaintiff had failed to show the execution of the contract by the defendant. To the exclusion of the evidence so offered, and to the direction of the verdict, the plaintiff excepted.

The question is whether the jury would have been warranted in finding that the salesman Wedge was authorized by the defendant to sign his name to the contract. We are of opinion that it could not have been ruled as matter of law that there was no evidence to show that Wedge was so authorized, but it was a question of fact for the jury to determine. It is plain that Wedge could have been the agent of the defendant for that purpose. “Where the principal is present, the act of signing ... is to be deemed his personal act, as much as if he held the pen, and another person guided his hand.” Story on Agency, § 51. If the name of the defendant was written by Wedge in the presence of the defendant and at his request or by his consent, express or implied, it is his act. Gardner v. Gardner, 5 Cush. 483 . Wood v. Goodridge, 6 Cush. 117 . Martin v. Maguire, 7 Gray, 177 . Burns v. Lynde, 6 Allen, 305 , 309, 310. Finnegan v. Lucy, 157 Mass. 439 .

From the evidence that in previous dealings in the purchase and sale of flour the witness Wedge signed the defendant’s name to contracts in the same form as that declared on in the present action, and the evidence that the defendant could not write, it could have been inferred that when Wedge said to him, “I’ll sign this, Frank,” it was the defendant’s name that was to be signed, and was so intended by Wedge and so understood by the defendant; and that the latter having made no objection he thereby authorized it. There would have been no occasion for Wedge to announce his intention of signing, merely for the purpose of writing his own or his employer’s signature. It follows that the original contract and the copy were admissible. A verdict could not properly have been directed for the defendant.

Exceptions sustained.