243 Mass. 580 | Mass. | 1923
This action is to recover on a written guaranty given to the plaintiff by the defendant. It was dated April 21, 1911, and is as follows:
“Mr. George A. Creighton, Lynn, Mass. My dear Mr. Creighton: — In accordance with your instructions I have put you down for $1000 of the underwriting of the Eastern Canada Fisheries Ltd. This entitles you to 10 shares of preferred stock and 20 of the common. Payments are 10% on the amount beginning May 1st. In regard to the dividend on the Preferred stock I would say that I will personally guarantee a 7% dividend on your $1000 preferred stock. Very truly yours, Wm. D. Elwell.”
Dividends on the preferred stock of the Eastern Canada Fisheries, Limited, were paid to the plaintiff in the years 1912 to 1917, inclusive. He contends that the guaranty of a seven per cent dividend by the defendant was to continue as long as he (the plaintiff) was the owner of the stock. He testified that he paid $100 a month for ten consecutive months — until the subscription price had been fully paid; and that he could not recall the conversation between himself and the defendant with reference to the purchase of the stock, and had no present memory of such conversation. The defendant testified, without objection, that the plaintiff asked concerning dividends; that nothing was said to him as to when dividends would be paid; that the plaintiff inquired whether he would be paid the dividend while he was paying for the stock, and the defendant answered, “we didn’t know
The agreement was in writing and its construction was for the court. The parties are bound by the contract as written; this rule is not affected by the fact that paroi evidence was admitted without objection. London Guarantee & Accident Co. Ltd. v. Jacobson, 241 Mass. 255. Butterick Publishing Co. v. Fisher, 203 Mass. 122. Mears v. Smith, 199 Mass. 319. Blade v. Bachelder, 120 Mass. 171. The defendant’s guaranty was that “a 7% dividend” would be paid. It was a guaranty of a “dividend” on the preferred stock. In our opinion, these words do not imply a promise that more than one dividend would be paid, or that dividends for any length of time beyond the single seven per cent dividend would be paid. The promise was limited to one dividend of seven per cent. The words were in the, singular, and there is nothing in the circumstances surrounding the transaction which shows that the meaning of the words expressed in the written guaranty should be extended.
In Tilton v. Whittemore, 202 Mass. 39, the guaranty was to pay “dividends amounting to not less than 8% per annum,” and the defendant agreed to repurchase the stock in one year. Dividends were paid for fourteen months at the rate of eight per cent. In that case the word “dividends” was used, and not the words “ a dividend,” as in the case at bar. It was held that the guaranty was intended to be limited to one year.
In Rotch v. French, 176 Mass. 1, the defendant’s guaranty was to pay “a dividend of 6% per annum on stock subscribed to.” It was assumed without deciding that more than one dividend was guaranteed. Verdicts for the plaintiff were set aside. Rotch and Seabury were paid dividends during their lives, and the jury were warranted in finding that they paid for their stock on the express stipulation that they should receive the guaranty. It was held that the guaranty continued for a reasonable time. In that case the dividend was to be paid “per annum.” These words are not found in the defendant’s guaranty, in the present case. In
Exceptions sustained.
