50 Mass. 42 | Mass. | 1845
The first inquiry that arises upon this report is as to the terms of the contract entered into by the parties, on the 3d of June 1840; the plaintiff insisting that it was an absolute and unqualified agreement, by the defendants, to accept certain promissory notes, for the sum of $1661-35, in full of then- judgment, subject to no other condition, than that the execution, which issued on such judgment, might be used for the limited purpose of enforcing payment of the sum secured by these notes. To sustain this position, the plaintiff relies upon the vote of the defendants authorizing then- directors to adjust the demand against the plaintiff, at their discretion, and the vote of the directors, under that authority. This vote, the plaintiff insists, is to be taken as the evidence of the terms of the contract between these parties. On the other hand, the defendants contend that the only contract ever entered into between the parties was that contained in the written instrument signed by their treasurer.
If the position of these parties had been reversed, the plaintiff claiming under the written contract, signed by the treasurer, and the defendants insisting that they were bound only by the vote of the directors, and alleging a want of authority in the treasurer to execute a contract in the terms in which it was made, the question would perhaps have presented more difficulty. But, as the question now presents itself, the plaintiff would repudiate the written contract which he himself received from the treasurer, as the evidence of the stipulation between the parties, as to this matter. It seems to us, however, that although the vote of June 3d 1840 is to be looked
This view of the case is decisive of the present action, and requires judgment to be rendered in favor of the defendants.
Another ground of defence was also relied on, which would, as it seems to us, lead to the like result. Supposing the proper construction of the contract between the parties to be such, that upon the payment of $1665-35, the execution was to be discharged, and that the time of payment was not limited strictly to the precise days on which the notes fell due;
The present case shows no unconditional offer to the defendants’ treasurer of the sum to be paid; but it was accompanied with a requisition of some writing to discharge Richardson. This condition the plaintiff could not legally annex to the tender of the money, and this would clearly render that tender of no effect. As to the other tenders the court express no opinion.
A verdict is to be taken for the defendants, agreeably to the stipulation of the parties.