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Carrier v. McLlarky - 141 N.H. 738, 693 A.2d 76 (1997)

Rule:

Whether an agency agreement has been created is a question of fact. An agency relationship is created when a principal gives authority to another to act on his or her behalf, and the agent consents to do so. The granting of authority and consent to act need not be written, but may be implied from the parties' conduct or other evidence of intent.

Facts:

When Bruce M. McLlarky d/b/a Assured Plumbing & Heating installed a replacement water heater in Janet Carrier’s home, he told her that he believed the old water heater was under warranty, and that he would try to obtain a credit against the cost of the new water heater from the manufacturer. When Carrier was not given the desired credit, she filed an action against McLlarky in small claims court, which rendered judgment in her favor.

Issue:

Did the trial court err in rendering judgment in favor of Carrier in her small claims court action to recover the replacement value of a water heater installed by McLlarky?

Answer:

Yes

Conclusion:

The court found that the trial court imposed liability under a theory of breach of duty on the part of McLlarky as Carrier’s agent. While the court agreed with the determination that the parties had entered into an agency agreement, it held that the trial court's findings regarding a breach of duty on the part of McLlarky were unreasonable and unsupported by the record. The court found that the McLlarky made a reasonable attempt to obtain a refund for Carrier, and that no more was required of him in his agent capacity. Furthermore, the court found that no evidence in the record established that the heater was in fact covered by a valid warranty or that McLlarky failed to turn over a refund actually received from the manufacturer.

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