317 Mass. 581 | Mass. | 1945
This is an action of contract to recover $10,077.62 with interest arising from the sales of leather made by the defendant during September, 1937, as selling agent of the Murray Leather Company, a copartnership, hereinafter called Murray, which sum the plaintiff alleged was due to it. The defendant filed an answer and also a declaration in set-off for $10,000 which it alleged was owed to it by Murray. The jury found in favor of the plaintiff in the sum of $13,369.98 and for the plaintiff on the defendant’s declaration in set-off. The case is here on various exceptions of the defendant.
The defendant does not deny that it is accountable for $10,077.62 for the sales of leather but denies that this sum belongs to the plaintiff. The parties for convenience have treated this amount as $10,000. It is undisputed that Murray has owed the defendant $10,000 since January 20, 1937. The defendant also takes the position that it is entitled to set off this amount against the September sales. The parties have stipulated that if the defendant has the right to this set-off the plaintiff is not entitled to recover.
The corporation, which was organized under an Act of Congress (U. S. C. [1940 ed.] Title 15, § 601), offered on December 18, 1936, to lend Murray an amount not exceeding $50,000 for the purposé of purchasing hides which Murray was to manufacture into leather. The said loan was to be secured by certain documents of title or accounts receivable. Murray and the defendant entered into a written agreement on January 28, 1937. This agreement contained several preambles reciting the intention of the corporation to make the said loan to Murray which was to be secured by trust receipts or other documents of title to the hides; and that the defendant was to continue as exclusive selling agent of Murray and to guarantee payment for the sales of leather for which it was to receive a commission. In this agreement the defendant promised that, "in consideration of the corporation making the” proposed loan and for the purpose of inducing the corporation to release the hides from the operation of the trust receipts, the agreement would remain in full force and effect until all the indebtedness of Murray to the corporation had been paid; that it would furnish the corporation with prompt advice of all sales of leather; that it would pay the corporation within twenty-eight. days the entire
The first inquiry is whether the plaintiff by virtue of the assignment to it from the corporation became the owner of the proceeds from the September sales. The defendant contends that the corporation was not a party to the agreement of January 28, 1937, because, although it was executed by the defendant and Murray, it was never signed by the corporation. . The corporation was not a formal party to the written agreement. It is plain, however, that the agreement was an offer to the corporation which, upon performance by the corporation of the things mentioned in the agreement that were to be performed by it, ripened into a unilateral contract. The execution of this agreement by the defendant and Murray furnished the inducement for the loan from the corporation to Murray and, the corporation having accepted the promises of the defendant made to it in the agreement, the defendant became bound to perform these promises even though the corporation did not execute the written agreement. Johnson-Foster Co. v. D’Amove Construction Co. 314 Mass. 416.
The plaintiff as assignee of a nonnegotiable chose in action under a written assignment from the corporation could sue in its own name. G. L. (Ter. Ed.) c. 231, § 5. This section gave a new remedy but it did not affect the substantive rights of the parties at common law and, as against the defendant, the plaintiff, as assignee of the corporation, did not by means of the assignment obtain any rights in addition to those that the corporation would have
Unless the corporation was entitled to the balance remaining from the gross monthly sales after the deduction of the commission and the cost of the hides, then the ownership of these monthly balances did not pass by the assignment which it gave to the plaintiff. The only monthly payments that the defendant agreed to make to the corporation were the payments representing the cost of the hides 'out of which the leather which it sold was manufactured. The defendant guaranteed the payment of the monthly balances to Murray. The defendant did not promise in the agreement of January 28, 1937, to pay them to the corporation. Lovell v. Commonwealth Thread Co. Inc. 272 Mass. 138. Electro-Formation, Inc. v. Ergon Research Laboratories, Inc. 284 Mass. 392. Leventhal v. Atlantic Finance Corp. 316 Mass. 194.
There is nothing in the plaintiff’s contention that the defendant agreed to pay these monthly balances to the corporation between the time the notice to terminate the agreement wras given and the expiration of the agreement, which in this case was from August 11, 1937, to October 11, 1937. The agreement provided that during this period the defendant "shall pay the corporation as, aforesaid for all goods so sold and/or shipped.” The interpretation of this written agreement is a question of law for the court. Rizzo v. Cunningham, 303 Mass. 16, 20. Tritsch v. Ayer Tanning Co. Inc. 316 Mass. 598, 603. The clause just quoted did not in terms impose any obligation upon the defendant to pay the corporation 'for all goods sold by the defendant or shipped by Murray on the defendant’s orders subsequent to notice of termination of the agree
The plaintiff’s second ground upon which it sought to maintain the action .is that the defendant orally agreed to pay it the monthly balances. There was evidence that the president of the plaintiff after August 11, 1937, when it entered into a new written agreement with Murray, spoke to a director of the defendant, and that before and after this date he spoke to the defendant’s treasurer. What was said does not appear except that the president of the plaintiff told the defendant’s treasurer that the plaintiff was entering into an arrangement with Murray similar to the- one Murray had with the corporation, and that any money that the defendant collected would thereafter come to the plaintiff instead of to the corporation until the Murray account was fully paid. There is no evidence of what, if anything, the treasurer said. This evidence would not support a finding that the defendant promised to pay the plaintiff the money that it now seeks to recover. Apart from the lack of authority of the defendant’s treasurer to change the method of payments as fixed by the agreement of January 28, 1937, and apart from any question of .consideration, this conversation did not constitute any promise of the defendant to pay the monthly balances to the plaintiff. All that its president stated was that thereafter the payments that the defendant had undertaken to make to the corporation were to be made to the plaintiff. This did not include the payments of the monthly balances which, as already pointed out, the defendant had never agreed to make to the corporation. There was nothing in the circumstances attending this conversation that fairly could be understood as a demand for the payment of these monthly balances, and there was nothing to indicate that the defendant’s treasurer knew or ought to have known that such payments were expected from the defendant. The matter was already covered by an existing agreement. The evidence would
The payments made by the defendant to the plaintiff subsequently to the assignment from the corporation to the plaintiff do not support the plaintiff’s contention that these payments indicate the existence of an implied undertaking by the defendant to pay these monthly balances to the plaintiff. The first payment to the plaintiff was for the cost of the hides included in the July sales and the balance was paid to Murray. No subsequent payment was made to the plaintiff except on the written request of Murray as shown by the documentary evidence.
The result is that the plaintiff was not entitled to go to the jury on either of the only two issues upon which, it contended at the trial, it was entitled to recover. The plaintiff now argues that there are other grounds upon the evidence sufficient to maintain the action and that there was no error in the denial of the defendant’s motion for a directed verdict. See G. L. (Ter. Ed.) c. 231, § 122; Archer v. Eldredge, 204 Mass. 323, 327; Boston Tow Boat Co. v. Medford National Bank, 228 Mass. 484, 487; Cummings v. Hotchkin Co. 292 Mass. 78, 83; Weston v. Fuller, 297 Mass. 545, 548. The evidence does not warrant a finding that the plaintiff had any right to the proceeds of the September sales by virtue of any assignment from Murray. Murray under date of October 20, 1937, wrote the defendant that “you are hereby authorized to forward your check for September sales to” the plaintiff. The defendant did not forward any check but retained all money on account of the indebtedness of Murray. There was no evidence that this letter was ever delivered to the plaintiff. The plaintiff could not maintain an action on any promise of the defendant to pay it upon receipt of this letter because it never promised to pay the plaintiff and, the letter never having
Neither did the plaintiff, by virtue of the written agreement made with Murray on August 11, 1937, acquire any rights in the fund held by the defendant. The defendant was not a party to this agreement and did not know its contents. The obligation of the defendant to pay Murray was fixed by the agreement of January 28, 1937, which in some respects continued in effect until the payments were made in November, 1937, for the October sales which ceased on October 11, 1937. Murray until the latter date was obliged to ship goods on orders from the defendant, and the defendant was obliged to collect the amount of the sales and guaranteed their payment to Murray. The agreement of January 28, 1937, was not superseded nor affected by the agreement of August 11, 1937. It is plain from an examination of this latter agreement, which dealt in considerable detail with the accounts of customers of Murray, that it did not include the shipments made by Murray upon the defendant’s orders.
It follows that the plaintiff upon all the evidence has failed to prove that it was entitled to the proceeds of the September sales. The exceptions of the defendant to the denial of its motion for a directed verdict are sustained. No amount, therefore, is recoverable by the plaintiff. The defendant makes no contention that in this event it is en
Exceptions sustained.
Judgment for the defendant.