Agency. Contract. Corporation. At the trial of an action of contract to recover for services rendered and disbursements made by an undertaker in connection with the funeral and burial of an employee of the defendant, a corporation operating a railroad, there was evidence that the plaintiff had a conversation with a clerk in the defendant's general passenger and ticket department, that the clerk gave detailed orders for the funeral and burial and told the plaintiff that he thought there was an amount owed by the defendant to the deceased employee at the time of his death sufficient to provide for a proper burial, that on his return to his office the clerk reported to the defendant's general passenger agent what he had told the plaintiff as to the affairs of the deceased employee, who had stated that what he had said was "all right," that the plaintiff had made demand on officers of the defendant who had denied liability and referred the plaintiff to the executor of the will of the deceased employee. Held, that a verdict for the defendant was directed rightly, there being no evidence of authority in the clerk to bind the defendant or of ratification by the defendant of his acts.
At the trial of an action of tort to recover for damages suffered by the plaintiff because of services rendered and disbursements made by him for the defendant, a corporation operating a railroad, in the performance of an alleged contract which was in excess of the powers of the corporation and which the defendant refused to perform, the plaintiff's contention was that the contract was made on behalf of the defendant by a clerk in one of its departments, but there was no evidence of authority of the clerk so to act or of ratification of his acts by the defendant or of benefit accruing to the defendant from the services rendered and disbursements made by the plaintiff. Held, that a verdict was directed for the defendant rightly.
SHELDON, J.
There is no useful purpose to be served by recapitulating the evidence in this case. The plaintiff contends that Harris, acting for the defendant and with its authority, employed the plaintiff to make all the arrangements for the funeral of Lenix, who had been in the defendant's service, and also that the action of Harris in so employing the plaintiff was afterwards ratified by the defendant acting through its managing officers. If this contention were supported by the evidence, doubtless it might be a good one. But this is not the case. Harris did not hold himself out as representing the defendant; he made no promise that the defendant would meet the expenses of the funeral; on the contrary, he spoke of the means of payment that were expected to be available from Lenix's estate.
Nor was there any evidence that Harris had authority to bind the defendant or to make any promise in its behalf. He was a clerk in the general passenger agent's office. Neither by implication from his position nor by express delegation was there anything to show that he had, or that he was held out as having, any such authority. Nor is there evidence of a subsequent ratification by the defendant's managing officers of any agreement made by him. A simple denial of liability is not evidence of a ratification. There is nothing in the cases cited by the plaintiff that can help him. He cannot recover upon either of the counts relied on.
The presumption is that funeral expenses are incurred on the credit of the estate of the deceased. Sweeney v. Muldoon, 139 Mass. 304, 308. Constantinides v. Walsh, 146 Mass. 281. Pettengill v. Abbott, 167 Mass. 307. There is nothing in the case to overcome this presumption, so far as the defendant is concerned. Whether the plaintiff could hold Harris for his bill, is not before us.
Exceptions overruled.