| Mass. | Sep 15, 1873
In considering this case we must assume that all the facts which the plaintiff offered to prove are true. It appears that the plaintiff and James Barnes and Willis Phelps had been partners. After the partnership was dissolved and its affairs partially adjusted, the estate of Messer had an unsettled claim against the firm, and the plaintiff had a private claim against the estate of Messer. The three partners had some conversation about the settlement of this claim, but before any agreement on the subject was made Phelps was obliged to go West, and before going he orally authorized Barnes and the plaintiff to make for him and in his behalf, and for themselves any arrangement they should think best regarding the matter. Before leaving, Phelps signed a letter to the plaintiff in which he says, “ Any arrangement you and Gen. Barnes make about the matter we were talking about will be satisfactory to me.”
Soon after Phelps left, Barnes and the plaintiff agreed that the plaintiff should settle the Messer claim, that he should be paid therefor out of the assets of the firm $1500, and that, if the
The plaintiff has performed his part of the agreement, his claim is just and equitable, the objection to it is purely technical, and ought not to prevail unless we find in the established rules of law insuperable difficulties in the way of the plaintiff’s right to recover. In our opinion there are no such difficulties.
The case does not turn upon the question whether Phelps is bound by the written agreement signed by Barnes and Mattoon. He does not contest the suit, but admits that by his contract with the plaintiff he is liable according to the terms set out in the agreement. If it be assumed that Phelps is not bound by the agreement itself, the question is whether that fact discharges and releases Barnes from his promises contained therein.
There is a class of cases in which it has been held that where an instrument has been executed only by a part of the parties between whom it purports to be made, it is not binding upon those who have executed it. Bean v. Parker, 17 Mass. 591" court="Mass." date_filed="1822-03-15" href="https://app.midpage.ai/document/bean-v-parker-6405028?utm_source=webapp" opinion_id="6405028">17 Mass. 591. Wood v. Washburn, 2 Pick. 24. Howe v. Peabody, 2 Gray, 556. Russell v. Annable, 109 Mass. 72" court="Mass." date_filed="1871-11-15" href="https://app.midpage.ai/document/russell-v-annable-6416735?utm_source=webapp" opinion_id="6416735">109 Mass. 72. Most, if not all, of the cases of this class, are cases where the parties executing the instrument would have a remedy, by way of indemnity or contribution, against the other parties named, which remedy is lost by the failure of such other parties to execute the instrument. The reasons for holding the instrument void are that it was intended that all the parties should execute it, that each executes it upon the implied condition that it is to be executed by the others, and therefore that until executed by all it is inchoate and incomplete, and never takes effect as a valid contract.
Oh the other hand, where these reasons do not apply, it is held that a party who signs and delivers an instrument is bound by the obligations he therein assumes, although it is not executed by
In the case at bar, it also appears that Barnes executed and delivered the agreement with a full knowledge of all the facts. Both parties knew that Phelps was absent; there was no condition, express or implied, that Phelps was to sign it; neither party intended or understood that it should be deemed inchoate or incomplete; but Barnes delivered it in its present form “ as and for a binding contract between the parties.” We are of opinion that, under the circumstances of this case, Barnes was bound by his execution and delivery of this contract, and that the learned judge who presided at the trial erred in directing a verdict for the defendant. Exceptions sustained.