Shattuck v. Eastman

94 Mass. 369 | Mass. | 1866

Hoar, J,

The plaintiff has declared upon two written contacts, and by the terms of each his right to receive payment was to accrue, if the men whose names he had furnished should “ go to make a part of the quota of the ward.” The evidence which was offered by the defendant at the trial, and rejected by th court, that the quota of the wards had been filled from other sources when the men were credited by the commissioners, and notice given to the defendant, was therefore competent and material, and should have been admitted. It negatived a condition upon which the cause of action depended. On this ground the exceptions are to be sustained, and a new trial granted.

It was suggested at the argument that this difficulty was obviated by the proof of the oral agreement stated in the bill of exceptions. To determine the effect of that agreement it is necessary to look at the situation and relations of the parties. It appears that the president of the United States had called for a certain number of men for the army, and that the proportion required from the several districts in the state had been determined, each town and ward of a city constituting a district. By U. S. St. of 1864, c. 201, § 3, it had béen provided u that all enlistments into the naval service or marine corps during the present war shall be credited to the appropriate township, precinct or district, in the same manner as enlistments for the army.” Commissioners had been appointed, whose duty it was to ascertain what credits each district in Massachusetts was entitled to receive under that provision. The defendant, as agent for two wards in Lowell, had signed the written papers declared on in this suit, reciting that he had received from the plaintiff the names of certain men to be presented to the commissioners to be credited to those wards. It would seem that they were men already enlisted in the naval service, and who could therefore be credited to those wards only on the ground that they belonged to the wards at the time of their enlistment. The vnly consideration moving from the plaintiff, to entitle him to receive the large sum of money which he sues for, was the furnishing the names, and perhaps the evidence that the men belonged to those warls. He was to receive his money, if they were credited and allowed on the quota of the ward. But it is obvious that they could not justly and lawfully be credited to one place or another at the plaintiff’s pleasure. It would be a fraud to procure them to be credited to any other place than that from which they had enlisted, and which was entitled to a credit for them upon its quota.

This being the state of facts, after the plaintiff had furnished the namés, as belonging to these wards in Lowell, he said to the defendant that if he did not want the men, he wished him to give a statement in writing to that effect, so that he could use the names elsewhere; to which the defendant replied, that if they were credited he wanted them, and would pay for them.

The objections to charging the defendant upon this evidence are obvious. In the first place, it is not the contract declared on. Secondly, there does not seem to have been any consideration for the promise. The wards had already received all that the plaintiff could furnish, upon the conditional written agreement. But further, the statement of the plaintiff that he could use the names elsewhere could not be true, if his previous conduct had not been dishonest and fraudulent. The men whose names he furnished, if they belonged to these wards, should have been credited there, and nowhere else. If they did not belong to them, it was a fraud to attempt to obtain credit for them. The proposition of the plaintiff seems to imply that he had some kind of property in the men ; or that the decision of the commissioners could be changed, according to his private interest in the result. It might induce the suspicion that, in the whole transaction, there was something hardly consistent with public policy or sound morals.

As the case must go to a new trial, it is proper to express an opinion upon the question presented in the exceptions, whether the evidence showed a contract upon which the defendant is personally liable.

The written agreements set forth in the declaration do not contain an express promise by the defendant. The language is, “ the said Shattuck is to receive the sum,” &c. Whether this ia a mere statement or certificate of a fact, or would import a promise by the defendant, would depend upon the state of facts shown to exist at the time the writings were made, and by which they are to be interpreted. Thus if A. had received merchandise from B. to sell, and, when sold, to pay a specified price, there could be no doubt that a writing signed by A. and stating the receipt of the merchandise, and that, when sold, M B. is to receive ” a sum named, would be a promise by A. to pay that sum. But if the dealing were with another party, and the signer of the paper were merely an officer or agent whose duty it was to certify that the conditions of an agreement had been performed, the same language would not establish a personal liability in him. It is a question to be submitted to a jury with proper instructions, if the case comes again to trial, and its decision may depend upon facts respecting the defendant’s agency which are but partially disclosed by the evidence.

Exceptions sustained.