Elastic Tip Co. v. Graham

185 Mass. 597 | Mass. | 1904

Loring, J.

The plaintiffs’ first contention is that the words “ I authorize the above offer and agree to carry the same out if secured within the time named,” converted what was otherwise a written offer by the plaintiffs to the defendant into a written offer by the defendant to the plaintiffs, as explained in Elastic Tip Co. v. Graham, 174 Mass. 507; that this written offer was accepted by the plaintiffs, that the writing signed by both thereby became a binding agreement, and that it is not open to the defendant to add by paroi a new term to that agreement, as he now seeks to do, by showing that when these words were added to the writing and his signature was attached and the paper was handed to Mr. Herrick, the attorney for the plaintiffs, the defendant “ stated that it was not to take effect and he was not to carry it out unless a sufficient amount of creditors signed to enable him to control the proceedings in insolvency and composition in the Insolvency Court, and get possession of the assets.”

With regard to the substance of the thing stipulated for by the defendant when he handed the paper to Mr. Herrick, it is something which was capable of being made effectual in either one of two ways, namely: It could have been added to the offer as an additional term thereof, or the defendant could have made the delivery of the paper in which the offer is stated conditional on the requisite number of creditors coming into the arrangement. In the second case, the defendant in legal effect said to Mr. Herrick when the paper was handed to him: I intrust this paper to you, not as an offer on my part but as a paper which is to become an offer on my part when a specified number of creditors signify their intention of making me the offer stated in the body of the instrument, that is to say, of accepting my offer. Had the paper been sent by the defendant to the plaintiffs directly, enclosed in a letter written by the defendant, there would have been no opportunity for the mistake which has happened. But it was delivered to Mr. Herrick, and apparently through a misunderstanding this condition did not come to the knowledge of the plaintiffs.

We are of opinion that the judge was right in instructing the jury that such a condition in delivery could be shown by paroi.

It is settled that a completed instrument may be shown by paroi to have been delivered on a condition which has not been performed. Faunce v. State Assur. Co. 101 Mass. 279. Watkins v. Bowers, 119 Mass. 383. Davis v. Jones, 17 C. B. 625. Bell v. Ingestre, 12 Q. B. 317. Pym v. Campbell, 6 El. & Bl. 370. Wallis v. Littell, 11 C. B. (N. S.) 369. Juilliard v. Chaffee, 92 N. Y. 529, 535. Benton v. Martin, 52 N. Y. 570. Sweet v. Stevens, 7 R. I. 375. Goddard v. Cutts, 11 Maine, 440. Coffman v. Coffman, 79 Va. 504. Westman v. Krumweide, 30 Minn. 313. It is also settled that a defendant can show by paroi that his signature to what purports to be a perfected agreement was to take effect on its being signed by others, and that they have not signed. Butler v. Smith, 35 Miss. 457. Goff v. Bankston, 35 Miss. 518. Jordan v. Loftin, 13 Ala. 547. In our opinion the case at bar comes within those decisions.

The plaintiffs’ second contention is that the stipulation was meaningless and void because by reason of the provisions of Pub. Sts. c. 157, §§ 40, 41, a unanimous election did not insure the appointment of an assignee, composition proceedings did not apply to insolvent corporations, St. 1884, c. 236, § 15, and the oath required for proof of claims would have prevented the defendant from proving claims acquired by him under this agreement. Pub. Sts. c. 157, § 29. We assume that all this is so, but it appears that at a previous meeting when the defendant made a similar statement as to the condition on which he was willing to agree to buy these claims, the plaintiffs’ attorney had told the defendant “ that such necessary proportion would be three fourths of the amount.” What the words used by the defendant under these circumstances meant or might be found to mean was that the paper was not to take effect as an offer until “ three fourths in amount ” of the creditors had signified their assent.

Finally, the plaintiffs contend that Mr. Herrick did not assume to act for the plaintiffs and that he acted solely for the defendant, and that as the plaintiffs testified that they did not know of the condition they are not bound by it. The correctness of this conclusion is not in question here. The judge instructed the jury that Mr. Herrick was acting for the plaintiffs, and we are of opinion that he was right. Mr. Herrick had been retained by the plaintiffs, and on the suggestion being made that the defendant might buy up the claims of the creditors generally at the same interview “the defendant agreed to pay Mr. Herrick for his services in endeavoring to procure signatures of creditors, other than his two clients the plaintiff corporations.” Under that arrangement, so far as the plaintiffs were concerned, he continued to act for them.

Exceptions overruled.