Opinion
No. 3460.
Decided February 1, 1944.
Where no agency was established as between the defendant and the alleged agent, no action in assumpsit can be maintained by a minor against the defendant to recover back money paid to the alleged agent in the absence of proof that the defendant received any of the money so paid to the alleged agent by the minor.
ASSUMPSIT, to recover money claimed to have been paid the defendant through its agent or sub-dealer, Maurice Zyla. Trial by jury, resulting in a nonsuit.
On or about June 1, 1936, the plaintiff, then 16 years of age, entered into an agreement with Zyla, an employee of the defendant, whereby plaintiff would sell newspapers for the said Zyla, corner Hanover and Elm Streets in Manchester, on a basis of equal division of the profits of the business. Zyla was then selling papers at this newsstand. He was employed by the defendant as a "union mailer," his working hours being from 10:50 P.M. to 6:00 A.M. His occupation as a newspaper dealer was an independent undertaking on his part, not connected with his employment for the company. He paid for the papers daily when purchased. Plaintiff worked for Zyla about four years in all, though not uninterruptedly. His claim is that Zyla was either an authorized agent or sub-dealer employed by the defendant for the purpose of selling the company's papers either personally or through others, and that having paid Zyla one half of the profits realized from the sale of the defendant's and other newspapers (such as Boston, New York papers, race sheets, etc., in which defendant had no interest), amounting to about $2 per day, and having rescinded his contract when he reached the age of 21, he is now entitled to recover back this money.
Plaintiff excepted to the granting of defendant's motion for a nonsuit at the close of plaintiff's evidence, and a bill of exceptions was allowed by Young, C. J.
William G. McCarthy (by brief and orally), for the plaintiff.
McLane, Davis Carleton and Robert P. Bingham (Mr. Bingham orally), for the defendant.
The evidence fails utterly to prove one of two indispensable requisites to maintain an action of assumpsit, to wit: that the defendant received any of the money plaintiff paid to Zyla, or that the money was paid to Zyla as the defendant's agent, duly authorized to hire the plaintiff for the company and to receive for the company any of the profits derived from the conduct of the newsstand. Without such proof, the action cannot be maintained. 4 Am. Jur. s. 20 p. 510; Alexander v. Coyne, 143 Ga. 696; Agawam National Bank v. South Hadley, 128 Mass. 503, 507.
Judgment for defendant.
All concurred.