
    W.H. Sawyer Lumber vs. Timothy J. Murphy and another
    
    Western District
    September 16, 1981.
    Present: Greenberg, McGuane & Larkin, JJ.
    Robert E. Longden, Jr. for the plaintiff.
    Richard M. Creamer for the defendant.
    
      
       Judith Murphy.
    
   Greenberg, J.

The plaintiff sues in contract to recover the sum of $3,299.66 for goods sold and delivered. The answer is a general denial that the plaintiff had sold and delivered goods to the defendants, and that the plaintiff “contracted,” if at all, with a third party, who was neither the agent, servant, or employee of the defendants. At the trial, there was evidence that the plaintiff was in the business of selling lumber and other building supplies and had furnished certain supplies to one Lundquist, a contractor, who, in turn, was building a home for the defendants under a contract. On or about September 16, 1975, the plaintiff’s director of purchasing contacted the defendants’ home by telephone, after receiving their names from the contractor, Lundquist. Certain information was given to the plaintiff and was placed by the plaintiff on a form entitled, “Application - Sawyer Charge Account.” The trial judge found that the plaintiff established in its business records an account in the name of the defendants, but that the defendants never signed, or orally acknowledged that it was their credit which the plaintiff might rely upon for payment. During the period from December, 1975 onward, the plaintiff’s record of this account showed goods supplied and paid for, with a balance due of $3,299.66. Bills for the goods supplied bore the name of the defendant, Timothy Murphy, and were mailed to his home. The defendant turned these bills over to Lundquist, the contractor. Payment of these bills was made through a mortgage loan. The bank, in accordance with its practice, issued checks to the plaintiff upon receipt of an invoice from the contractor under authorization by the defendants.

The trial judge found that there was no contract between the defendants and the plaintiff; that the goods and supplies delivered to the property of the defendants were ordered by, and sold and delivered to, the contractor, Lundquist; that defendants authorized the bank to make payments to the plaintiff, but that this authorization was not an acknowledgment of any indebtedness owed by the defendants to the plaintiff; and finally, that Lundquist was an independent contractor, who did business as J. P. Builders and was not acting as the defendants’ agent.

At the close of the trial and before arguments, the plaintiff made the following requests for rulings, which are at issue in this appeal:

3. The evidence warrants a finding that there was a contract between the defendant, Timothy J. Murphy, and the plaintiff for building supplies. (The court granted this request, but did not make such a finding.
4. The evidence warrants a finding that the defendants, Timothy J. Murphy and Judith Murphy, acknowledged their indebtedness to the plaintiff. (The court denied this request.)
9. The evidence warrants a finding that Walter Lundquist acted as agent for the defendant, Timothy J. Murphy, in purchasing supplies from the plaintiff. (The court denied this request.)
10. The evidence warrants a finding that Walter Lundquist had authority from the defendants, Timothy J. Murphy and Judith Murphy, to purchase building supplies from the plaintiff and to charge the defendants’ account.
(The court denied this request as inconsistent with the facts found.)

The plaintiff contends that the course of dealings between the parties clearly converted Lundquist’s status as an independent contractor to that of an agent of the defendants, because payment for the materials ordered from the plaintiff was through the defendants’ bank. Further, the plaintiff argues that the charge account in the name of the defendants and their acceptance of the materials clearly indicated Lundquist’s implied authority to bind them, or in the alternative, their ratification of his purchases as their agent, citing Crystal Coal and Oil Co., Inc. v. Yasner, 24 Mass. App. Dec. 12 (1962), and Atlantic Refining Co. v. Weener, 22 Mass. App. Dec. 49 (1960).

In the Ciystal Coal case, the plaintiff was a supplier of oil to the premises owned by a realty corporation which, in turn, supplied heat to its tenants. One defendant, Yasner, was a principal officer and shareholder of the corporate owner and one of its tenants, also a corporation. In its action against the realty corporation, the plaintiff prevailed with the court holding, inter alia, that over the long period of time the corporation had received deliveries (1957 thru 1960), it had acquiesced and conferred apparent authority upon its president to bind it by his actions. This case is distinguishable from the instant case on several grounds. First, the relationship between Yasner as a corporate employee with authority to bind his principal was established. Second, his apparent authority to bind the corporation, of which he was an officer and shareholder, was implied through his direct relationship as a fiduciary and operating director. We cannot say that the relationship between Lundquist as the defendants’ agent (assuming arguendo, plaintiffs contention on this point) was closely analogous.

In the Atlantic Refining case, the plaintiff, a supplier of gasoline, sought recovery against the defendant, whose employees were authorized to charge gas on their presentation of a credit card. The defendant contended that certain employees were extended credit for which they were not responsible, because the credit slips did not bear any evidence indicating that the card was used in the credit card machine at the time of the sales. On the facts, the court held that defendant failed to show any proof that the employees did not actually have the card in their possession, and that the plaintiffs burden of proof was sustained with its evidence that the employees actually presented the card at the time of the transactions. This case, unique in its facts, presents a clearly different situation from which its precedential value to the instant appeals is weightless.

We turn, then, to the central issue in the plaintiff s requests for rulings numbered 9 and 10, that is, did Lundquist act as an agent with authority to bind the defendants for the purchases in question?

An independent contractor is one who agrees to accomplish a certain result with power of control over the details of accomplishing it left to him. Linnehan v. Rollins 137 Mass. 123 (1884); Herrick v. Springfield 288 Mass. 212(1934). The findings of the trial judge indicate that Lundquist’s purpose was consistent with this principle. Obviously, one of the details of his accomplishing the construction of the defendants’ house was the purchase of necessary supplies and equipment. The connection between the bank financing the construction, whereby it issued payment upon invoices presented by Lundquist, argues strongly for his position as an independent contractor. Where a person employed is engaged under an entire contract for a gross sum in an independent operation and is not subject to the control and discretion of the employer? the relation is not regarded as that of master and servant, or principal and agent, but as that of an independent contractor and contractee; and in such cases the general rule is that the acts of the contracting party cannot be charged as those of the parties for whom the work is being done. Frank S. McAllister’s Case 229 Mass. 193; Todd, Administrator v. Wernick, 334 Mass. 624 (1956).

We do not subscribe to the contention that the charge arrangement unilaterally created by the plaintiff, by which it received checks directly from the defendants’ bank, makes any significant difference. Its relationship with Lundquist, who clearly acted as an independent entrepreneur, insulated the defendants. Historically, even an agent employed to purchase for his principal had no implied authority to execute negotiable instruments so as to bind the principal. Gould v. Norfolk Lead Company, 63 Mass. (9 Cush.) 338 (1852), atp. 344. This ancient principle of law is applicable with more force to the instant case where the plaintiff seeks to rely upon a promissory note of the defendants’ bank to fix liability on the defendants. In disposing of the question of the defendants’ liability, we need not determine whether such bookkeeping arrangements altered the relationships of the parties, because the record does not disclose any other evidence of reliance upon the defendants’ credit. Therefore, we find no error in the trial judge’s denials of requests numbered 9 and 10.

Finally, the plaintiff claims to be aggrieved by the trial judge’s rulings on requests numbered 3 and 4. The wording of request No. 3 permits the trial judge, if she believed and concluded on the evidence that a contract existed between the plaintiff and the defendants, to so find. By granting this request, but not making such a finding, she clearly indicates that her ulitmate conclusion differed from one permissible view of the evidence. See Ryerson v. Fall River Philanthropic Burial Society 315 Mass. 244 (1943); Bresnick v. Heath 292 Mass. 293 (1935). There is no error.

The request numbered No. 4 that evidence warrants (emphasis added) a finding that the defendants acknowleged their indebtedness to the plaintiff, was denied by the trial judge. To deny this request is a ruling as a matter of law that there was insufficient evidence under any view of the testimony to permit a finding for the plaintiff. This was properly denied.

There being no prejudicial error, it is ordered that the report be dismissed. 
      
       Lundquist was named as a third party defendant in the action prior to trial, but did not respond. Judgement for the defendants rendered dispositive any claim of the defendants against him pursuant to Mass. Rules of Civ. P., Rule 14.
     