121 Mass. 588 | Mass. | 1877
The assignment by the nominal plaintiff to the real plaintiff was of “ the obligation hereto annexed, signed by Warren Morse, Willard Aldrich, Road Commissioners for Ash-land, Mass.,” and of “ all moneys now due and to become due thereon.”
The obligation thus identified was a contract, not under seal, purporting to be a “ specification for building a town way in Ashland,” “ as by the road commissioners reported to and allowed by the town at a meeting held the 27th day of August,” and providing that the road should be built in a certain time and manner, and “ to the satisfaction and acceptance of the road commissioners of Ashland,” and that the price (the amount of which was not mentioned, but had previously been fixed by agreement between the contractor and the road commissioners, acting under authority of the town, at $800) should be paid at certain times named therein.
The contract does not contain any express promise, either of the town, or of the road commissioners, to make such payment. But the subject and the terms of the contract clearly show that it is made on behalf of the town. And the signature is to the same effect, just as if the words had been transposed, thus: “ For Ashland, Mass., Warren Morse, Willard Aldrich, Road Commissioners.” The contract must therefore be considered, according to the intention of the parties as manifested upon its face, to be the contract of the town, and not the personal con •
The memorandum, afterwards appended to the contract before the assignment, and forming part of it as delivered to the assignee, is not to be construed as a separate instrument, but as an addition to, and explanation of, the contract as first drawn up; and, so construed, (whatever might be its operation if of itself a distinct and complete agreement,) likewise bound the town and not the commissioners personally.
In Simonds v. Heard, 23 Pick. 120, the contract contained an express promise by the committee, and was signed by their individual names, without more. In Tippets v. Walker, 4 Mass. 595, and in Fullam v. West Brookfield, 9 Allen, 1, the contract was under seal, and could not, by the stricter and more technical rules which govern such instruments, have effect as the deed of the corporation, because there were no words in the body thereof expressing any agreement in its behalf. Those cases are thus distinguished from the one before us.
For these reasons, we concur in opinion with the Superior Court, that the assignment was sufficient in form to assign the debt due from the town. Exceptions overruled.
