State Police Association of Massachusetts - Page 31

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               is an independent contractor and as such * * *                         
               [petitioner] has no direction and control over the                     
               personnel or business activities of * * * [publisher].                 
               * * * [publisher] is not the agent of * * *                            
               [petitioner] and shall not incur any expenses, bills,                  
               indebtedness or obligations for or in the name of * * *                
               [petitioner] and shall save * * * [petitioner] harmless                
               from any liability whatsoever as a result of * * *                     
               [publisher’s] business activities.                                     
               The manner in which the parties to an agreement designate              
          their relationship is not controlling.  Board of Trade v. Hammond           
          Elevator Co., 198 U.S. 424, 437 (1905).  A true agency                      
          relationship may be established despite the parties' designation            
          to the contrary.  See id. at 438 (quoting Connecticut Mutual Life           
          Insurance Co. v. Spratley, 172 U.S. 602, 615 (1899)).                       
               In the instant case, we conclude that the agreements                   
          manifested an intent that BWE and McKnight would act on behalf of           
          petitioner in conducting the sale of advertising.  The agreements           
          provided that BWE or McKnight (as the case might be) "has full              
          authority to use the good name of * * * [petitioner] during the             
          course of the earnings program."  Additionally, the agreements              
          provided a payment collection procedure in which "All checks or             
          money orders received as a result of the solicitation shall only            
          be made payable to * * * [petitioner]."  By providing BWE and               
          McKnight with the authority to use petitioner's name and to                 
          collect petitioner's solicitation payments, the agreements                  
          authorized those companies to act on behalf of petitioner in                
          conducting the sale of advertising.                                         






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Last modified: May 25, 2011