215 Mass. 194 | Mass. | 1913
The defendant bought of one Thompson, receiver of the Rochester Tumbler Works, three lots of merchandise, and later bought, of Thompson and a co-receiver subsequently appointed, a fourth lot. This action was brought to recover the price of the four lots, amounting to $214.35. The four lots were bought in March and April, 1908. At the trial the defendant
The following facts in connection with the release were put in evidence without objection, and on those facts, taken in connection with the release itself, the presiding judge
The facts referred to were these: Thompson was appointed receiver of the Rochester Company on December 7, of the Riverside Company on December 10, and of the Crystal Glass Company and the Ohio Flint Glass Company on December 17, 1907. Before the receiverships these four companies had sold merchandise to the defendant which, with interest to February 16, 1910, amounted to $4,277.51. The defendant had refused to pay the receivers this sum on the ground that it was entitled to a rebate, and four actions had been brought in the Superior Court to collect these amounts. At first the receivers refused to allow the rebate insisted upon by the defendant, but later they changed their position on this point, and in February, 1910, they came to Boston, called upon the president of the defendant company, and presented to him a written statement (which afterwards was annexed to the release subsequently made), in which the details making up the $4,277.51 were stated and, in addition, the details of the rebate amounting to $1,971.33, which they were then ready to concede. This made the net amount due from the defendant $2,306.17. The receivers presented this statement to the president of the defendant company. He left the room and on his return said that he accepted their figures, and thereupon one of the receivers dictated the agreement of compromise, the material part of which is hereinafter set forth, to which a copy of the statement mentioned above was annexed. This was executed in duplicate the next day, and later the $2,306.17 was paid by the defendant to the receivers.
The president of the defendant company testified that when he left the room he took to his bookkeeper the receivers’ statement or the amount shown by the statement to be due from
On September 10, 1910, Thompson wrote to the defendant stating that the. three parcels of merchandise bought by the defendant of him as receiver in March and April, 1908, had been overlooked, and asking it to pay for them. A similar letter was written on the same day by the two receivers with respect to the fourth lot of merchandise bought by the defendant of the two receivers in April, 1908. The defendant answered that it had a receipt in full from the receivers and refused to pay; whereupon this action was brought.
The defendant asked for the following rulings :
“1. That on all the evidence the verdict must be for the defendant: 2. A claim for goods sold by the receivers to the defendant would be a claim of the plaintiff company and would be an account due the plaintiff company: 3. A claim or account for the goods sold the defendant was a claim or account due the Rochester Tumbler Works and not due the receivers.” These were refused and exceptions were taken. The defendant took a further exception to that part of the charge in which the pre
The settlement made between the receivers and the defendant company on February 17,1910, was in writing. Being in writing the question whether it did or did not release the defendant from the debt due to the receivers for the four purchases made by it from them depends upon the terms of the written agreement. If the terms of the agreement had been ambiguous, the circumstances under which it was made would have been admissible to ascertain its true meaning. Whidden & Co. v. Jordan, ante, 189; while no recourse to outside facts was necessary or admissible to ascertain its meaning if its terms were not capable of more than one construction. In either event evidence of what was said in the course of the negotiations which led up to the making of the settlement made in writing was inadmissible to add to, vary or contradict it. And this is true even if (as was the case here) that evidence is admitted without objection. Mears v. Smith, 199 Mass. 319. Butterick Publishing Co. v. Fisher, 203 Mass. 122. Fairfield v. Lowry, 207 Mass. 352, 358. Whether the president of the defendant company did or did not ask for a “full release” was incompetent and of no consequence.
The written agreement here in question recites that “a settlement having been reached between the trustees or receivers” of the four companies (the Crystal Glass Company, the Riversidé Glass Company, the Ohio Flint Glass Company and the Rochester Tumbler Works) and the defendant company, whereby the defendant company is to pay the receivers $2,306.17 and costs incurred by it, and the receivers are to pay their own costs “and are to discharge said Mitchell Woodbury Co. from any further obligations or accounts due to the above named companies,” the receivers acknowledge payment of $1,306.17 and agree as to the payment of the remaining $1,000 which had been trusteed.
“Further obligations or accounts due to the above named companies” includes all amounts due the four companies for sales made by them or either of them, but it does not include sums due the receivers for sales made by them.
It did not appear at the trial for what reason the receivers here
The presiding judge should have instructed the jury that the debt here sued on was not covered by the release. In leaving that question to the jury the judge gave an instruction which was more favorable to the defendant than it was entitled to.
■ There is one ground on which the exception to the refusal to direct a verdict for the defendant would have had to be sustained had it not been waived by the defendant. This writ was sued out in the name of the “Rochester Tumbler Works, a corporation duly organized under the laws of the State of Maine, which brings this action by Addison Thompson, its trustee and Receiver..” Later the writ-was amended “by striking out the
Exceptions overruled.
Hitchcock, J.