Nickerson v. Weld

204 Mass. 346 | Mass. | 1910

Sheldon, J.

Three questions are raised by the defendants’ appeal in this case: (1) Whether the parties completed any contract; (2) whether if so there was any memorandum in writing thereof signed by the party to be charged sufficient to bind him under the statute of frauds, E. L. c. 74, § 1, cl. 4; and (3) whether such contract afterwards was rescinded and abandoned by mutual consent.

I. The plaintiff and the defendant Stephen M. Weld, hereinafter called Weld, who then owned the land in question and other land in that neighborhood, made an agreement by which the plaintiff bought and Weld sold to him that land for a stipulated sum and on definite terms, but with the statement that the land was “ subject to the usual Weld restrictions.” In fact, a large part of the land was not then subject to any restrictions.

We are satisfied, however, upon the facts reported by the master, that this language was intended as a stipulation that the conveyance to the plaintiff was to be made subject to the restrictions stated. As to this, the defendants contend that the words used, “the usual Weld restrictions,” do not describe any particular restrictions which can now be fixed and determined by the court; that it is impossible to say that both parties had any definite restrictions or any one scheme of restrictions in their minds; that this question was still to be agreed upon between them ; that accordingly their minds never met upon this material part of their bargain; and so that it cannot be said that there ever was concluded between them any final and definite agreement.

The plaintiff, after receiving from Balch the letter of October 29, 1906, which contains the memorandum upon which he now mainly relies, wrote at once to Balch, asking for a copy of “ the usual Weld restrictions,” of which Balch had said, “I will be glad to send you a copy if you care to see them.” Balch thereupon sent to the plaintiff a copy of an agreement between Weld and one Potter, to whom Weld had conveyed land in the vicinity of the land in question. This agreement contained a statement of certain restrictions, hereinafter called the Potter restrictions, and a covenant on the part of Potter to hold her land subject thereto. The plaintiff accepted these as “ the usual Weld restrictions ” named in the original memorandum. It is plain that if it had been Weld who had sent this statement of the Potter restrictions to the plaintiff, it would have fixed definitely the contemplated restrictions, and upon their acceptance a final agreement would have been completed. But this copy was sent by Balch to the plaintiff without the actual knowledge of Weld and without any express authority from him; and it is contended by the defendants that he is not bound by it.

The master has found that Weld is bound by this act of Balch, for reasons which are stated in his report. We are of opinion that this finding must be sustained.

There is no dispute that in the beginning of this matter Balch was acting as the agent of Weld, with Weld’s knowledge and consent. The letter of October 29 was sent to the plaintiff through Weld himself, who read the letter and acquiesced in it, and adopted it as binding upon himself. It was still, however, Balch’s letter, though binding upon Weld. And this letter contained an express promise by Balch, that he, Balch, would send to the plaintiff a copy of “ the usual Weld restrictions ” if the plaintiff so desired. This was an important part of Balch’s letter by which Weld consented to be bound. The plaintiff, accepting this letter as written by Weld’s authority, had a right to believe that Balch was authorized by Weld to make this promise, as indeed was the case; and this would include, as to the plaintiff, authority to keep the promise. The copy of the restrictions was not to be sent by Weld personally, or under some subsequent authority to be given or withheld as Weld might choose; it was to be sent by Balch, under authority from Weld then given by Weld’s very act in assenting to Balch’s promise and allowing himself to become bound thereby.

Accordingly the words “ the usual Weld restrictions ” in the original memorandum have been fixed and made certain through the subsequent adoption by the parties of the Potter restrictions as the ones intended by the words originally used. We do not understand it to be now denied that in every other respect a complete agreement had been made. Accordingly we are of opinion that it appears that a final and complete agreement had been reached between the plaintiff and Weld, and that the first ground of defense set up fails the defendants. This view is confirmed by the findings of the master that there was no dispute between the parties as to these restrictions, but that the disagreement was due in the first instance to certain other claims made by Weld.

2. It is a different question whether there was any memorandum of this agreement sufficient to satisfy the provisions of the statute of frauds.

The memorandum of course must state upon its face or by means of other documents to which reference may be had all of the essential terms of the agreement. Whelan v. Sullivan, 102 Mass. 204. Doherty v. Hill, 144 Mass. 465, 468. White v. Bigelow, 154 Mass. 593, 595. Bogigian v. Booklovers Library, 193 Mass. 444. Looking at this memorandum by itself accordingly, the first question is whether any, and if any, what meaning can be given to the words “ the usual Weld restrictions.” Oral testimony is competent to show both the situation of the parties and what restrictions, if any, had previously been put by Weld upon other land of his forming a part of the same tract of land or situated in its neighborhood, and also to determine whether any and what definite scheme of restrictions had been formed or framed by Weld, so as in either event to be fairly in-eluded within the words used. Such evidence may be received for the purpose of determining the exact subject matter which is spoken of, of applying the language to that subject matter, and thus of ascertaining precisely what was in the minds of the parties and so construing correctly the language they used, Putnam v. Bond, 100 Mass. 58. Swett v. Shumway, 102 Mass. 365. New England Dressed Meat & Wool Co. v. Standard Worsted Co. 165 Mass. 328. Buffington v. McNally, 192 Mass. 198. DeFriest v. Bradley, 192 Mass. 346, 352. Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co. 199 Mass. 22. Such testimony was received by the master; audit now appears that Weld had conveyed several parcels of his land near to the land in question, and had imposed upon the lands thus conveyed certain restrictions which, while they had many features in common, were not uniform; and it has not been found that any of them could have been accurately described as “the usual Weld restrictions.” But the Potter restrictions, and only the Potter restrictions, did apply to a part of the land in question. It was only they that had been adopted or applied by Weld to any part of this land. And it is somewhat significant that these restrictions were not created by the deed from Weld to Potter. They were created by the agreement already mentioned between Weld and Potter. By this agreement, after reference to the previous deed of the land, Potter covenanted to hold for a fixed period the land which had been so conveyed to her subject to the restrictions stated in the agreement, and Weld covenanted to hold certain land of his own, including a part of that here in question, subject to the same restrictions for the same period. Under these circumstances it well might be claimed that by the phrase used the parties intended the Potter restrictions, which, though mentioned in only one recorded paper, had been adopted by Weld as the ones that were to be enforced upon a part of this tract and were the only ones that had been so adopted.

But however this may be, it seems clear to us that the copy of the Potter agreement which was sent by Balch to the plaintiff is to be taken in connection with his first letter, and that these two papers are to be construed together in determining whether there was a sufficient memorandum of the agreement. Apart from the fact that the Potter agreement was already in existence when Balch’s first letter was written, the fact that this copy was sent and may have been prepared after the first letter was written is not material. Freeland v. Ritz, 154 Mass. 257. Both of these papers must be deemed to have been parts of the same transaction. Lee v. Butler, 167 Mass. 426. Balch’s first letter was written on October 29, 1906, apparently the same day on which the oral agreement was made. The plaintiff immediately asked for a copy of the restrictions, and it seems to have been sent to him at once. The plaintiff then, on October 30, wrote another letter to Balch, reciting his purchase and agreeing to pay the stipulated price. Manifestly the whole correspondence was but one transaction.

The old rule, by which no other paper could be used to help out the memorandum unless incorporated into it by reference in the memorandum itself (Morton v. Dean, 13 Met. 385, Boardman v. Spooner, 13 Allen, 353), is no longer followed. The connection between different papers, so that they may be considered together and their sufficiency be determined by the contents of all of them, may be proved by oral evidence, at least so far as it is the result of that evidence to establish the fact that all of the different papers which are so to be considered together were brought to the attention of both parties, and were linked together in their minds, so that the parties themselves may be found to have adopted all the papers as the expression of their purpose. This is the effect of the recent cases. “ There is no doubt under the authorities,” said the present Chief Justice in Lee v. Butler, 167 Mass. 426, “ that the letter and receipt, as well as the paper containing the promise, may be used to complete the memorandum in writing required by the statute of frauds to make such a contract binding____ It is also well settled that paroi evidence may be introduced to show the situation of the parties and the circumstances attendant upon the transaction for the purpose of applying the contract to the subject matter, and of showing the connection of different writings constituting the memorandum with one another.” This doctrine was applied, with a statement of both the old rule and that now followed, in Oliver v. Hunting, 44 Ch. D. 205, in which Kekewich, J., uses this language: “ It is difficult, perhaps, to say where paroi evidence is to stop; but substantially it never stops short of this, that wherever paroi evidence is required to connect two written documents together, then that paroi evidence is admissible.” See Lerned v. Wannemacher, 9 Allen, 412, 416; Freeland v. Ritz, 154 Mass. 257 ; Hibbard v. Hatch Storage Battery Co. 174 Mass. 296; Beckwith v. Talbot, 95 U. S. 289; Cooper v. Bay State Gas Co. 127 Fed. Rep. 482; Sheers v. Thimbleby, 76 L. T. (N. S.) 709; Camp v. Moreman, 84 Ky. 635; Jenkins v. Harrison, 66 Ala. 345; White v. Breen, 106 Ala. 159 ; Strouse v. Elting, 110 Ala. 132; Brewer v. Horst & Lachmund Co. 127 Cal. 643.

It cannot be contended that the Potter agreement was not signed by Weld, and so is not to be taken against him as á part of the memorandum. Doherty v. Hill, 144 Mass. 465. In that case, the deed was prepared by the plaintiff and offered in vain to the defendant for execution; here, the copy was sent to the plaintiff by Weld, acting through Balch. And although the master finds that no writing accompanied the copy, yet the copy must have shown Weld’s copied signature, and having been sent by Weld through Balch, as it must now be treated, this was of course enough. It was a statement in writing by Weld of what he intended by the words he had used as to the restrictions, and constitutes a part of the memorandum. It was not a variation or alteration of the former agreement or of the terms stated in Balch’s first letter. It was a statement in detail of the restrictions which were described in that first letter. And it was found by the master in his supplementary report that Balch, when he wrote the first letter, intended by the words “ the usual Weld restrictions ” those which were stated in the Potter agreement, and that it was the understanding of Weld that these were the restrictions to be specified in the deed to be made to the plaintiff, and that the original agreement never was altered by the parties.

Accordingly, we are of opinion that there was here a sufficient memorandum of the agreement to satisfy the requirements of the statute of frauds.

3. The finding of the master that there had been no rescission of the contract cannot be said to have been plainly wrong. The fact that Weld said that he would throw up the contract unless his claims were conceded, and that the plaintiff replied “ All right,” is not decisive of such a rescission. It might have shown a rescission by mutual consent; but it also might show merely that Weld threatened to repudiate his agreement, and that the plaintiff intimated that Weld could do as he pleased, and in that case he, the plaintiff, would act as he pleased. And the master could find that Weld’s remark was not intended as more than a tentative suggestion. Upon all the facts reported, we cannot revise the master’s finding upon this issue.

What we have said disposes of all the contentions that were made at the argument before us. The final decree must be modified so as to charge the defendants with the costs of this appeal, and so modified must be

Affirmed.