Home PHILIP CRANSTON vs. HEALER MOTORS, INC.

358 Mass. 806

November 2, 1970

The plaintiff excepted to the action of the trial judge in directing a verdict for the defendant on the plaintiff's opening statement. The declaration alleged a fraudulent representation to the plaintiff by the defendant or its agents that a certain automobile was owned "by one John Doe," as a result of which the plaintiff was induced to purchase the car from John Doe when the defendant or its agents knew the car was not owned by John Doe and had been stolen. The plaintiff's opening statement demonstrated an intention to prove that the defendant's salesman told the plaintiff, who sought to buy a used car, that he was about to sell an Oldsmobile to one Wells, who was prepared to trade in a 1960 Pontiac; that the plaintiff and the salesman went to Wells's home; and that the plaintiff and Wells exchanged cars and license plates there. The opening statement also alleged that the plaintiff paid the salesman $600 and returned home with the Pontiac, whereupon he was informed by police that the Pontiac had been stolen and surrendered the car. There was no error in directing a verdict for the defendant. While in cases involving close questions we have indicated that "the safer course is to hear the evidence" (Douglas v. Whittaker, 324 Mass. 398 , 400), the defendant is not nevertheless answerable as principal for the acts of the salesman in negotiating a transaction between the plaintiff and a third party. The salesman's authority extended only to sales made in the usual course of business, which would not include an exchange of two cars not owned by the defendant on premises unconnected with the defendant. Upton v. Suffolk County Mills, 11 Cush. 586 , 589. See Sears v. Corr Mfg. Co. 242 Mass. 395 , 400; Braden v. Trustees of Phillips Academy, 321 Mass. 53 , 55. Nor can whatever knowledge the salesman had as to the origin of the Pontiac be imputed to the defendant in these circumstances. Innerarity v. Merchants' Natl. Bank, 139 Mass. 332 , 333.

Exceptions overruled.

Home MARINUCCI BROS. & CO. INC. vs. COMMONWEALTH.

358 Mass. 806

November 2, 1970

A contractor seeks to recover from the Commonwealth under G. L. c. 258 an excessive restitution by it (on June 27, 1962) of amounts overpaid to it by the Commonwealth in connection with a contract. See Commonwealth v. Marinucci Bros. & Co. Inc. 354 Mass. 743 , where (a) no relief was granted because that proceeding was not under c. 258, but (b) there was strong intimation that the Commonwealth should refund the contractor's admitted restitution overpayment of $19,298.30 "as a matter of equity and to avoid unjust enrichment of the Commonwealth." The sole exception set out in the bill of exceptions is to the general finding of the trial judge (sitting without jury) for the Commonwealth. No rulings were requested by the plaintiff. See Leshefsky v. American Employers' Ins. Co. 293 Mass. 164 , 166-167; Spencer v. Robert Lawrence, Inc. 347 Mass. 765 ; True v. American Fid. Co. 352 Mass. 764 . The only issue argued by either party is whether correction of the injustice is barred by the three year statute of limitations found in G. L. c. 260, Section 3A. This petition under c. 258 was brought on November 28, 1966, within three years after the semifinal estimate of work under the contract (January 9, 1964). It does not appear to be disputed that, on the semifinal estimate, the excessive restitution was taken into account in the computation. The Commonwealth itself asserts that "the facts are uncontroverted." We deal with the case on the issue argued by the parties. The excessive payment is to be regarded as one of the continuing adjustments under the contract (including the semifinal

Page 807

contract settlement computation; see Companella & Cardi Constr. Co. v. Commonwealth, 351 Mass. 184 ) rather than as an attempt to recover money paid by mistake (with no allegations of fraud or concealment) where the cause of action arises at once upon the mistaken payment. Cf. Sturgis v. Preston, 134 Mass. 372 , 373; State Natl. Bank v. Beacon Trust Co. 267 Mass. 355 , 360. Recovery is not barred by Section 3A.

Exceptions sustained.