Smith v. Burton

| Vt. | Jan 15, 1887

The opinion of' the court was delivered by

Veazey, J.

The plaintiff denies that he is bound by his subscription, because, as he alleges, the conditions of it have not been fulfilled, and because they were modified by the letter of Burlón,, and the terms of that letter have not been complied with.

Neither of these claims can be sustained.

The subscription paper is not ambiguous but plain and complete in itself, and must be construed by itself independent of the letter. The letter was simply one of the preliminary negotiations to the subscription. To allow the letter to come in as a modification of the subscription contract would be in violation of the rule that a written contract cannot be enlarged, varied or contradicted by parol testimony. If the letter may be regarded as an indemnity to the plaintiff for signing the subscription it is not available to. him in this action.

As to the other proposition of the plaintiff we put this construction upon the subscription contract: The only condition of the subscription was that Burton and Sowles and wife should convey the Tremont property to Foster as trustee of MacDonald. The phrase, “ on six thousand dollars being subscribed hereto,” was not a condition of the subscription strictly, but a condition in behalf of Burton and Sowles and wife upon which they should convey. They wbre not obliged to convey until so much was subscribed. The object of the subscription was to secure the Tremont property for the contemplated business and thereby promote the industry; and unless it was conveyed for the purpose the subscriptions would not be enforceable ; and if conveyed and MacDonald did not fulfill as therein provided, then the subscribers had security on the property. If the owners were satisfied to convey upon a subscription of less than six thousand dollars the primary object of the subscribers was attained and their security increased, the provision being that in case of default by MacDonald the trustee was to convey six-tenths of the premises to the subscribers; therefore-, the less the subscriptions the greater the proportion to go to each subscriber. The provisions in the subscription paper, in respect to MacDonald’s obligations, were conditions upon which he would become entitled to said premises, and not conditions of the subscription.

We think this construction of the contract is unmistakably correct; therefore, the plaintiff* is bound by it as between him and the defendants. His remedy, if any, is against the trustee and the property, or against Burton on the .promise in his letter, or both; but the questions that may arise in that direction are not for consideration here.

If the plaintiff’s subscription is to be held enforceable agamst him, it is not contended but that it is to apply on the plaintiff’s claim against the defendants under the agreement to that effect as found by the auditor. But there is a small balance in addition in the plaintiff’s account, and the question is whether that is good as against Sowles as well as Burton. It appears that Burton told the plaintiff to charge the labor and supplies, which he should furnish on MacDonald’s orders, to Burton and Sowles, and they were so charged. The auditor finds that Sowles never in fact authorized or assented to this, “ or concurred in any arrangement between the plaintiff and Burton any further than is stated in the report, unless a further concurrence results as a legal effect of facts found by me.”

We think the contracts between MacDonald and the defendants, stated in the report, should not be construed as conferring upon the defendants respectively any authority to act for each other in borrowing money or pledging credit in the performance of their obligations to MacDonald, as provided in said contracts. The provisions of the first contract strongly tend to negate such authority. The second contract taken alone might possibly bear such construction ; but that contract does not appear to have been intended as a substitute for the first one, but rather as supplementary to it; and upon the point now under consideration, it does not appear why the two contracts may not properly be considered and treated as one. But in arriving at what is the legal effect of the facts found by the auditor, on the question of Sowles’ liability to the plaintiff, it is proper to consider them in the light of the contract. It is upon the whole report, which contains the contract, that we are to decide the point.

Although Burton and Sowles were plainly not made by the contract partners or proprietors in the shirt business, they became its reliance for money and material, and interested in all the property of the .concern as security for such support, and the subscriptions of all others were to go to them, and were so promised in the subscription paper which the plaintiff signed.

Burton was entrusted with the paper to solicit the plaintiff’s subscription, and obtained it. His account was for labor and supplies, such as Sowles must have known, situated as he was, the business would demand. He knew the plaintiff was furnishing them, because he assented that he might pay his subscription in that way. Although not made partners or proprietors of the business as between themselves by the contract with MacDonald, the subscription paper ran to them jointly, and their attitude to the business was to appearances a joint relationship as between each other. We think the plaintiff especially had a right so to regard it. True, the auditor says that Sowles never assented to the charges being made to him'unless such is the legal effect of the facts reported ; but having authorized and assented to all the transactions stated, and standing in not only the real but in addition in such apparent relation to the business as is shown by the report, and having security for all that he and Burton furnished through the plaintiff, we think justice cleaidy demands that he should not be allowed to repudiate the small balance of the plaintiff’s account above his subscription on the score that he never expressly assented to it.

The proforma judgment is reversed, and judgment is rendered for the plaintiff to recover the amount of his account with interest, above the amount of his subscription, with costs.