Elastic Tip Co. v. Graham

174 Mass. 507 | Mass. | 1899

Holmes, C. J.

This case has been before the court upon demurrer to a count upon the written agreement. Newton Rubber Works v. Graham, 171 Mass. 352. It now comes here upon demurrer to two counts which have been added. These counts allege that the defendant offered to buy of the plaintiff, for a price stated, a debt which was owed to it by the Quincy Cycle Company, upon condition that the offer was accepted within thirty days, and that the plaintiff accepted the offer within the time. The counts refer to the writing as containing the offer ímd acceptance. As the case now stands, the only important question is whether the writing is capable of meaning what the plaintiff says it does. For unless we can say that no circumstances which conceivably might be proved would warrant the construction which the plaintiff alleges to be the true one, we must take that construction to be correct. In the opinion of a majority of the court it is not impossible that circumstances should warrant that construction.

The document is prepared in the form of an offer by creditors of the Quincy Cycle Company, each for himself, to the defendant. But it would be competent to prove that the instrument was drawn by the defendant, or at least that the words, “ I authorize the above offer and agree to carry the same out if secured within the time named,” were written and signed by the defendant before any creditor had signed or even seen the paper. If so, the document in its first stage was an offer by the defendant, and the signature by the plaintiff was an acceptance, although the words put into its mouth are words of offer. The supposed state of facts would explain the words, “ I authorize the above offer,” and would at least lay a foundation for a finding that the words, “ if secured within the time named,” mean, “ if the same is secured,” etc.; that is, “ if the offer is secured,” or, in other words, turned into an agreement by acceptance. Perhaps it is not necessary to stick so closely to grammar as this interpretation does. In one way or another the phrase seems to us easily read as an elliptical proviso that the defendant secures a right to the transfer of the debt.

Demurrer overruled.