Contract, Construction. Agency. Where an engine company agrees for a price named to furnish an engine for a valve company, "supplying man's time for three days, or less, to superintend the erection of engine ready for steam connections and, if connections are made without delay, to start engine under steam, turning it over to you in running order you paying his expenses and furnishing laboring help as needed," the man sent under this provision to superintend the setting up of the engine at the works of the valve company, while he is engaged in supervising the setting up of the engine, is in the employ of the engine company, and the valve company is not liable for an injury caused by his negligence.
LORING, J.
At the trial after the decision in Bowie v. Coffin Valve Co. 200 Mass. 571, both defendants rested upon the plaintiff's testimony. The presiding judge directed a verdict for the defendant in this action (the action against the Valve Company) and submitted the case to the jury in the action against the Engine Company.
The only attempt to make out negligence on the part of the defendant was by showing that Daniels was negligent and that he was a superintendent of the defendant within R.L.c. 106, § 71, cl. 2.
But we are of opinion that by the true construction of the contract between it and the Valve Company the Engine Company agreed, as a contractor, to do the work of superintending the erection of the engine and that the Engine Company did not agree to lend one of its employees to the Valve Company to act as the Valve Company's superintendent in erecting the engine. That is to say, as matter of law Daniels was in the employ of the Engine Company at the time of the accident and not in that of the defendant.
It follows that the ruling was right.
Exceptions overruled.