Ellis v. Block

187 Mass. 408 | Mass. | 1905

Loring, J.

We are of opinion that there' was a mistrial in this case.

The plaintiff testified that at an interview in Boston between himself and the defendant Louis T. Block, had in June, 1896, Block offered on behalf of the defendant firm to pay him $50,000, in addition to the compensation he was entitled to as their agent in New England, if he would remain with them as their agent until the outstanding accounts were collected, and place so much of the capital stock of a corporation with a capital of $500,000, which he agreed should be formed to take over the defendants’ Darling Distillery; that the plaintiff accepted the offer and agreed to buy $25,000 of the stock. During the conversation Block told the plaintiff that he was to be the selling agent, and in answer to the plaintiff’s question: “ When do you want to do this?” the plaintiff testified that Block said: “We cannot do it now, as you know the condition of the whiskey market is in terrible shape. We cannot do it until next year, until you collect your accounts.”

Louis T. Block testified that it was the plaintiff who at this interview suggested the idea of incorporating this distillery, and that he did not refuse, but gave him an evasive answer to induce him to continue with them as their agent because they had some $50,000 of accounts outstanding, resulting from sales made by the plaintiff which no one could collect so well as he could.

After telling the jury that if the.matter was concluded at the interview in June, as the plaintiff testified, he was entitled to a verdict unless the statute of frauds stood in the way, the presiding judge gave them this further instruction : “If, on the other hand, it was simply a proposition, a matter talked over, laid aside for future consideration and future dealing, then, if it was left open, it was not a contract, it was a mere thing discussed, and it would be for you to say then whether, out of the evidence that the parties have presented in the correspondence, there was ever an agreement of the minds of the parties upon the definite terms of a new and another contract, at another time than on the 11th of June, ’96, but having the same terms and the same conditions, which were expressed in writing. You will have the evidence before you, and I cannot instruct you upon the facts, because, the way this case stands before you, it is for you to pass upon that question.”

We are of opinion that there is nothing in the subsequent correspondence which warranted such a finding. As the question was a question whether a contract, and if a contract what contract, was made in part by word of mouth and in part by written correspondence, the matter had to be passed upon by the jury under proper instructions from the court.

But whether the written correspondence made the previous oral negotiations into a contract (if the jury found that what was said in June amounted to no more than negotiations) was a matter to be dealt with by the court in its instructions to the jury. Had the previous negotiations been carried on in writing the question would have been for the court whether the subsequent letters concluded the matter, by converting what had been no more than negotiations into an obligation. That question was none the less for the court because the negotiations had been carried on by word of mouth. The only difference is that in the former case the whole question of the contract is for the court while in the latter case it is for the court to deal with the question which is for it in its instructions to the jury, and to leave the whole question under those instructions to the jury. See Bascom v. Smith, 164 Mass. 61; Aldrich v. Bay State Construction Co. 186 Mass. 489.

The plaintiff contends that the subsequent correspondence did make the previous negotiations into a contract, and he rests his contention to that effect on the plaintiff’s letter of March 12, 1897, the defendants’ answer of March 15 and their letter of March 19. In his letter of March 12, 1897, the plaintiff wrote; “ I would like to know if there is anything in it about your bonding your distilleries ; if so let me know, as I would like to prepare myself for it.” On March 15 the defendants wrote in answer: “ Regarding the bonding of our distilleries can only say that all the overdue accounts must be settled up before we can make any preparations to that end; we need funds and are forced to use extra efforts to accomplish and satisfy our wants.” On March 19 the defendants wrote: “We want to syndicate our plants, but cannot do it as long as those overdue a/cs are unpaid. We can both make some money if you attend to this matter quickly. Let us hear from you.”

The most that can be claimed for the answer of March 15 is that no preparations were to be made until the overdue accounts were settled up. That is not the assumption of an obligation that preparations shall then be made. And the most that can be claimed for the letter of March 19 is an expression of a “ want ” on the defendants’ part to have the distillery in question incorporated ; but that stops short of an assumption of an obligation on their part to incorporate it, as had been proposed by word of mouth. The matter is not helped-by the further statement that if the collecting of the accounts is attended to quickly both can make some money. What the plaintiff seeks to accomplish by these letters is to turn what Louis T. Block refused to put the firm under obligation to do, when he talked with the plaintiff in June, into an obligation on their part. At that time Block’s testimony was that he gave an evasive answer; said he would talk with his brothers about it and write to him. But if it be assumed that this was that writing, it falls short of being a promise and it falls short of making those negotiations into an obligation. It is obvious that a person who rested content with these letters did not think it was wise to push the matter to a conclusion at that time.

The more difficult question is whether the defendants are entitled to complain of this mistrial.

The plaintiff contends that the tenth ruling asked for by the defendants is to be construed to mean that the letters alone, that is to say, apart from any oral testimony, do not constitute a contract in writing. He admits that they do not. More than that, he says that he never contended that they did; that what he contended was that if the jury found that the conversation in June did not result in an agreement they could find that the letters in March, 1897, (Exhibits 6, 7, 8,) amounted to a renewed offer by the plaintiff of this same proposition and an acceptance thereof by the defendants. But that would not be a contract in writing. And he contends that for these reasons the ruling (being construed as he insists it should be construed) had “ no real relation to the case and could be refused by the court.” It seems plain that this was not what any one at the trial understood this ruling to mean. The plaintiff in the third ruling requested by him fell into a part of the inaccuracy which he now finds with the defendants’ tenth request: “ then the letters of March 12, 1897, and March 19,1897, would constitute a binding contract.” And the presiding judge, in the portion of the charge now under consideration, tells the jury that they can find that these letters made a new contract “ which was expressed in writing.” More than that, if the ruling was understood to mean what the plaintiff now says it meant, it must have been refused, as the plaintiff now says it could have been refused, or it might have been given as a preliminary instruction to clear the way for the jury to approach the question on which the case really turned. But neither was done. On the contrary the presiding judge said that he thought he had given the instruction in substance. What the presiding judge must be taken to have meant when he said that is not altogether clear. What he did was to leave the construction of these letters to the jury, and, as they construed them to be or not to be a promise on the part of the defendants to do what was proposed in June, they were to find that they did or did not make out a contract. By so doing he refused the plaintiff’s third request that the letters as matter of law “ would constitute a binding contract to that effect.” The most plausible explanation is that the presiding judge at the moment thought that if he refused the ruling requested by the plaintiff he gave that asked by the defendants. But that is not so. He did not give the tenth in words or in substance, and the defendants, by excepting to the refusal to give the tenth ruling and to the charge so far as it was inconsistent with it, saved their rights. See in this connection Commonwealth v. Meserve, 154 Mass. 64, 75; Brick v. Bosworth, 162 Mass. 334.

In Fairman v. Boston & Albany Railroad, 169 Mass. 170, and in Commonwealth v. Quinn, 150 Mass. 401, relied on by the plaintiff, there was no special ruling requested covering the point on which there was a misdirection, as there was in the case at bar. In the other case relied on by him, Dixon v. New England Railroad, 179 Mass. 242, there was a general exception to a long charge, not an exception to it so far as it was inconsistent with the rulings requested.

The verdict first brought in was a general verdict for the plaintiff in the sum of $15,000, although two separate causes of action had been tried and submitted to the jury. This led the presiding judge to question the jury as to the grounds on which they rendered their verdict. Among other questions the presiding judge asked if the jury had considered the statute of frauds, to which the foreman answered, in the presence of the jury and before the verdict was recorded, “Yes, sir, distinctly; also for the liability of the firm for the act of the partner.” The plaintiff contends that this answer, having the effect of a special finding, Spurr v. Shelburne, 131 Mass. 429, cures the error now before us. His contention is that these two questions (of the statute of frauds and of ratification) did not arise unless the jury found that the contract which they found was made, was made by word of mouth by Louis T. Block at the June conference between him and the plaintiff. The defendants on the other hand contend that the jury must be taken to have found that the contract was concluded by the letters in March, 1897, because they disbelieved the plaintiff’s testimony on the other claim tried. They also point out that the letter of March 19 appeared to have been written by Louis T. Block, and they argue that, so far as this letter is concerned, ratification had to be shown. Going beyond this they point out that all that the foreman said as to ratification was that they had considered it and that although they took a vote on the question whether the contract could be performed within a year, and found that it could be, it is not stated that this is what the verdict was rendered on. Enough has been stated to show that these answers cannot be extended by argument to settle a fact beyond that directly covered by them.

Exceptions sustained, and a new trial ordered on the fourth count and on the second items in the third and fifth counts.