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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Derry District Court
No. 95-703
JANET CARRIER
v.
BRUCE M. MCLLARKY D/B/A ASSURED PLUMBING & HEATING
April 16, 1997
Janet Carrier, pro se, filed no brief.
Bruce M. McLlarky, by brief, pro se.
JOHNSON, J. The defendant, Bruce M. McLlarky d/b/a Assured Plumbing & Heating, appeals an adverse judgment by the Derry District Court (Warhall, J.) in a small claims matter. We reverse.
The defendant installed a replacement hot water heater in the home of the plaintiff, Janet Carrier, in September 1994. The existing water heater had been installed by a different plumber approximately four years prior to its failure. When the defendant installed the new water heater, he told the plaintiff that he believed the old unit was under warranty, and that he would try to obtain a credit against the cost of the new water heater from the manufacturer. The defendant subsequently returned the defective unit to a supplier. The defendant has not given the plaintiff the desired credit and claims that he has failed to do so because he has not received payment from the manufacturer. The plaintiff sued the defendant in small claims court for the replacement value of the water heater and assorted costs. The district court rendered judgment in favor of the plaintiff, and this appeal followed.
The district court held: "The defendant in accepting the duty of returning the unit for the benefit of his [principal], the plaintiff[,] either obtained a credit or failed to pursue a credit to the detriment of the plaintiff." We interpret the court's holding as imposing liability under a theory of breach of duty on the part of an agent. See Nowell v. Union Mut. Fire Ins. Co., 119 N.H. 855, 857, 409 A.2d 784, 786 (1979) (breach of agent's duty to principal can subject him to liability for damages).
We find no error in the district court's determination that the parties had entered into an agency agreement whereby "the defendant would on behalf of the plaintiff return the old water heater for credit, which the plaintiff would [recoup]," and that "[t]he defendant accepted the authority to act for the plaintiff and took the old water heater to return it to the manufacturer for credit." Whether an agency agreement has been created is a question of fact. See 3 Am. Jur. 2d Agency