Blasdell v. Souther

72 Mass. 149 | Mass. | 1856

Shaw, C. J.

It was intimated, in the course of the argument, that after the agreement of the plaintiff with Lyman & Souther they had no right to dissolve their partnership to his injury, and that he could recover damage therefor. Whether he could or not is not a question open in this suit; he has sued one only, instead of both ; has offered evidence to prove that it was continued with Souther alone, and his claim is upon this substituted agreement.

We suppose there is no doubt that a valid oral contract may be made upon the basis of a preexisting contract, either by specialty or by an unsealed written instrument, modifying, changing and altering the terms of the written agreement. Mill Dam Foundry v. Hovey, 21 Pick. 417. Cummings v. Arnold, 3 Met. 486.

Supposing it therefore established by proof that, on the retirement of Lyman, the plaintiff and Souther agreed to continue the former contract, we are to inquire what that contract was. Strictly speaking, it was a new contract, because between other parties, but ascertained and regulated by the prior written contract, so that the former written contract must be resorted to, in proof of its terms. But in thus taking the former contract as the basis of the new one, it must of course be taken so far only as applicable, after substituting one instead of two, as the party contracting with the plaintiff; and as nearly as practicable, where it will not apply exactly. When therefore Souther alone took in a new partner, it had the same effect upon the substituted contract, as the taking in of a new partner by Lyman & Souther would have had under the former contract; this being more than three years from the date of the first, agreement, and the new partner having objected to the further continuance of the agreement of the plaintiff, on notice thereof given to him, the new contract with the plaintiff terminated.

The next material question is, whether the plaintiff is entitled to recover his commission, for work contracted for by him during the three years, but done or finished by the defendant and his new firm afterwards; and the court are of opinion that he is not.

The compensation to the plaintiff is very exactly defined by the contract; it does not depend at all on the work procured, recommended or contracted for by him; but is a commission on all their locomotive business, computing the same upon the total amount of sales of locomotive engines and tenders manu factored and sold by Lyman & Souther during the term of five years. This was reduced to' three years by the other stipulation.

It was on all sales of locomotive engines manufactured and sold. A contract for machines to be built, though at a fixed price, is executory merely; they are not sold ; no right of property vests in the purchaser, until they are completed and delivered, and paid for or security taken. Mixer v. Howarth, 21 Pick. 205. Spencer v. Cone, 1 Met. 283.

The parties appear to have adopted a basis of computation easily understood, of easy practical application, and the plaintiff is bound by it. By the terms of this contract, we suppose he received his stipulated commission from the commencement of the five years on all then locomotive engines, computed on sales of engines sold within the first year, although such business was done in pursuance of contracts previously made, with which his solicitation or agency had no concern.

We are therefore of opinion that the plaintiff is not entitled to a commission on sales of engines contracted for by him, but not finished, delivered or paid for, till after the term of his contract had expired. Judgment for the defendant.