152 Mass. 151 | Mass. | 1890
The plaintiff, who was a director of the defendant corporation, was elected its treasurer on January 2,1879, immediately after the organization of the company, and so continued until May 15, 1881, when he resigned both offices. No salary was established for the office of treasurer at the time the plaintiff was elected to that position. On June 6, 1879, at a meeting of the directors at which the plaintiff was present, the following votes were passed: “ That the salary of the president be fixed at the sum of six thousand dollars, to date from the organization of the company, and subject to future adjustment; that the salary of the treasurer be fixed at the sum of six thousand dollars, to date from the organization of the company, and to be subject to future adjustment.”
The plaintiff’s contention is, that the vote of the defendant constitutes a written contract, which cannot be varied by parol evidence. But the vote is not a contract. It is the act of the defendant alone, and it requires the act of both parties to make a contract. The vote must have been communicated by the defendant to the plaintiff, and accepted by him, to constitute a contract between them. To make a vote of a corporation a contract binding on it, it is necessary, as in the case of a deed or promissory note, that there should be the offer of the obligation by the one party to the other, and its acceptance by the other. In the case of written instruments, the usual evidence of offer and acceptance is proof of the manual delivery of the instrument.
The vote was not in form a contract with or promise to the plaintiff. It purported only to fix the salary of the treasurer of the corporation. The circumstances attending the vote, which were in evidence, and of which the defendant offered evidence, were in brief and substance as follows. The object of the corporation was, as its name imports, to build an elevated railway or railways. It was organized under its charter, and the plaintiff was cliosen and acted as its treasurer. Before exercising, or fully acquiring, its franchise to build railways, it was necessary to do certain things which were not done while the plaintiff remained in office, and there was very little for him to do as treasurer. It was in evidence, as recited in the bill of exceptions, that “ it was agreed at the time of the election of officers that no salary should be paid to the president or treasurer until such time as the charter of the company should be fully completed, and the company should get upon its feet.” About five
What the defendant wished to prove was, that the plaintiff was chosen treasurer of a corporation which was not prepared to commence its business, under an agreement that he should receive no salary until arrangements for doing business were perfected; that the amount of the salary which was to be paid him was not fixed; that afterwards, when negotiations were pending which it was believed would result in the commencement of business by the corporation, the vote fixing the amount of the salary of the treasurer was passed by the directors, with the understanding on their part, and on the part of the plaintiff, who was present at the meeting as one of the directors, that it should not supersede the 'agreement under which the plaintiff was elected, and should not be operative until such time as under that agreement the plaintiff should be entitled to a salary. As the plaintiff was present when the vote was passed, he of course knew of it; but the jury might have found, upon the offered proof, that he also knew that it was not passed to be communicated to him for his acceptance until the time when he should be entitled to a salary, and that he did not in fact accept it as a promise to pay him a salary. We think that the evidence excluded was competent upon the question whether there was a contract between the parties that the plaintiff should be paid a salary. It tended to show that the promise contained in the vote was not
It would seem that the court might have admitted the evidence offered and excluded of the conduct of the plaintiff in regard to the statements of indebtedness of the corporation. The evidence was offered as an admission by the plaintiff that the defendant was not indebted to him. If the jury believed, as the evidence tended to prove, that he as treasurer furnished a statement of the liabilities of the corporation, and did not include among its liabilities, any claim of his own for salary, at a time when, as he now claims, more than two years’ salary was due to him, and that after he ceased to be treasurer he was shown and assented to a statement of the liabilities of the company, which did not include his salary, we think that the evidence would be competent to be considered by the jury upon the question whether there was a contract that a salary should be paid to him. Exceptions sustained.