227 Mass. 311 | Mass. | 1917
The plaintiffs seek to recover on six promissory notes dated September 3, 1913, payable in one, two, three, four,
The defendant made a written contract with the plaintiffs the material portions of which were as follows:
“On your approval of this order, deliver to me . . . the Piano, graphanola, Silverware and Advertising Matter described . . . in payment for which I herewith hand you my six notes, payable to your order, aggregating $600. If order is not approved and shipped by you the notes are to be cancelled and returned to me.
“My last twelve months’ sales were $183,000.00. My next twelve months sales to be $219,600.00, and that if .00% per cent of my gross sales does not amount to Six Hundred Dollars for the next twelve months you will pay me the deficiency in cash, and send your bond for Six Hundred Dollars to cover this agreement with me.
“To make the last above clause binding upon you I agree to take the shipments promptly, carry out the contest plan promptly, meet all obligations entered into under this agreement, keep the Piano and Graphanola well displayed in my store, issue Piano Graphanola votes for each cent purchase and every sixty days of the contract to report to you my gross sales, and promptly furnish you all information you request to enable you to assist in pushing the contest.
“In consideration of the special methods set forth in your copyrighted plan and the special terms and agreement herein, this order cannot be countermanded.”
The bond was executed and was in evidence.
Subject to the plaintiffs’ exception the defendant’s treasurer testified that before signing the contract and notes he told the plaintiffs’ salesman that he had never run a contest in the store, he had no experience in running a contest similar to that of the plaintiffs, he was not familiar with the plans and would not sign the contract and notes unless the salesman would promise “to come into the store of the defendant and give his personal services to the defendant in starting and running the contest referred to in said contract,” for such time as would be necessary to put it in successful operation; that the salesman agreed to this, but when some of the goods were received and before the notes
The plaintiffs denied that the salesman had authority to make any representations other than those contained in the written contract. At the close of the evidence the plaintiffs requested the judge to order a verdict in their favor and duly excepted to his refusal to grant the request.
The contract expressly provided that in order to make the guaranty of the plaintiffs binding on them, the defendant was to “carry out the contest plan promptly, meet all, obligations entered into under this agreement,” and if this was done and the plaintiffs’ sales for the twelve months did not equal $219,600, the plaintiffs could be called on to pay “the deficiency in cash,” to the extent of $600. These promises were mutual and dependent. The contest was a condition precedent to the guaranty. If the defendant performed its part of the contract and the sales did not amount to the sum stated, its remedy was upon the bond. The payment of the notes in one, two, three, four, five and six months respectively, was not dependent on the contest or its success in increasing the defendant’s sales for the next twelve months. The promise to pay the notes as they matured was an independent stipulation. The notes were in payment for the merchandise purchased: the piano, graphonola, silverware and advertising matter were to bé delivered to defendant, “in payment for which I herewith hand you my six notes, payable to your order;” they matured in six months. The right to recover on the guaranty depended on the results of the contest during twelve months. The order of time in which the acts were to be done was different. The notes were to be paid before the time fixed for the conclusion of the contest, and the obligation to pay them at the time stated was an absolute promise and was independent of the contest. Kane v. Hood, 13 Pick. 281. Traver v. Stevens, 11 Cush. 167. Hapgood v. Wellington, 136 Mass. 217. Loud v. Pomona Land & Water Co. 153 U. S. 564.
As the contract of the parties in express terms made the contest a condition precedent to the guaranty, it could not be shown by paroi evidence that the contest was intended to be a condition precedent to the payment of the notes. The contract on its face purports to set out all the stipulations and to contain the entire agreement of the parties. The evidence offered would contradict
While the word "contest” may be of doubtful meaning permitting the introduction of paroi evidence to explain it (see Hebb v. Welsh, 185 Mass. 335; Jennings v. Puffer, 203 Mass. 534) such evidence is not admissible in this action, where the defendant is sued on the notes; nor is the evidence that the plaintiffs’ agent was to assist in starting the plan and in running the contest of importance in the present action; the payment of the notes being an independent obligation and not contingent upon the contest.
We express no opinion as to the admissibility of the evidence excepted to, in an action where the defendant seeks to recover for a breach of the bond. If the plaintiffs have broken their written agreement with the defendant, or if it can be shown that because of the breach of the collateral agreement to assist them in the contest (see Ayer v. R. W. Bell Manuf. Co. 147 Mass. 46; Keith v. Radway, 221 Mass. 515) the amount of the sales did not reach the sum stated, assuming but not deciding such evidence to be admissible, the plaintiffs’ remedy is upon the guaranty.
The exceptions must be sustained. According to the stipulation of the parties, judgment is to be entered for the plaintiffs for the full amount of the notes and interest.
So ordered.