146 Mass. 86 | Mass. | 1888
The plaintiffs, who were themselves contractors with the United States to carry the mails, having authority to sublet their contract, made a written contract with the defendants to carry the mails from Mashpee to Sandwich and back, according to a certain schedule. As an excuse for the nonperformance of their contract they offered evidence that, at and before the execution of this contract, the plaintiffs fraudulently promised to pi’ocure a change in the schedule, and fraudulently represented that they could,secure such a change; and that they knew at the time that they could not, and that they thereafter did not do so. The fraud which the defendants sought to establish was the failure to perform an oral promise contemporaneous with the written agreement, and constituting a part of the transaction, which the plaintiffs knew they could not perform.
The case at bar is readily distinguishable from those cases where it has been held that, if a person makes a representation of a fact as of his own knowledge in a matter susceptible of
That which the defendant sought to prove, if it can with propriety be termed' a representation at all, was a representation that something should thereafter be done. ■ Such a representation from its nature could not be true or false at the time it was made, and, if anything, was a contract or promise. The difference between a representation that something exists which does not, and a representation that something shall be done thereafter, is obvious. Beattie v. Lord Ebury, L. R. 7 Ch. 777, 804. A representation which amounts to an engagement, if enforceable, must be so as amounting to a contract. “ There is no middle term, no tertium quid,” says Lord Cranworth, “ between a representation so made to be effective for such a purpose and being effective for it, and a contract.” Maunsell v. White, 4 H. L. C. 1039, 1056.
What the defendants sought to establish by their evidence was an oral contract, by which the terms of the written contract were to be changed by the efforts of the plaintiffs, and the mails which the defendants had in writing agreed to transport according to a specified schedule were to be transported according to a different schedule, to be obtained from the Postmaster General. The principle that written contracts are not to be enlarged, added to, or controlled by previous or contemporaneous oral agreements is too we.ll settled to require a citation of authorities. Proof of such a representation as that offered by the defendants was proof only of an oral contract to be thereafter executed. Nor even if the plaintiffs made this oral contract fraudulently, knowing they could not perform it, would that have rendered the evidence admissible. There was no fraud in the written contract itself, and such evidence could not have been received to control its operation, and virtually to annul it.
Exceptions overruled,.
