Wood v. Farmer

200 Mass. 209 | Mass. | 1908

Knowlton, C. J.

The defendant filed a paper which is entitled “ Motion to Dismiss and Demurrer.” It begins by stating" that six other persons whose names are given are necessary parties defendant in the suit, and avers that therefore the defendant should not be held to answer, and the writ should be abated and the action dismissed. This is an answer in abatement, and it properly raises the first question in the case. Then follows, in the same paper, without waiving the preceding answer, a demurrer setting up these and other facts as grounds of the demurrer. Ho question is raised by either party on the pleadings.

The question as to nonjoinder arises under the third clause of the contract declared on, which is in these words: “In consideration of the premises the guarantors jointly guaranty the-payment of said $25,000, or any part thereof, pro rata, and also that the Securities Company will fully and completely perform- and fulfil the terms of the agreement with the parties of the-first part.” The defendant is one of seven guarantors who signed the contract. Is the undertaking contained in this clause joint or several ? The words 11 pro rata ” are all that create a possibility of a doubt about it. Without these words, even if the word “ jointly ” were omitted, it would be unquestionably a joint undertaking. Bartlett v. Robbins, 5 Met. 184. Donahoe v. Emery, 9 Met. 63. The word “ jointly ” emphasizes its character by an express statement. Do the words “ pro rata ” change its meaning and legal effect ? We think they do not. See Bartlett v. Robbins, ubi supra; Penniman v. Stanley, 122 Mass. 310. It is difficult to understand their exact significance. As here used they are not proper to characterize several action as distinguished from joint action. They more naturally refer to the proportion of the whole amount that the guarantors are to pay jointly, if payment of only a part should be required under the guaranty. The first thing provided for is a guaranty of payment of the whole sum of $25,000, and the second thing provided for is the payment of any part thereof, pro rata. It seems to us to be an inapt expression, used to indicate a payment of any proportional part of the whole sum in the same manner and upon the same terms as payment of the whole would be made. We think it was not intended to change the whole character of the undertaking from what is expressly said to be a joint guaranty to a several guaranty by each person of only a fractional one seventh of the whole sum of $25,000 or any part thereof.

The next question is whether the letter written to the defendant by Abbott and White, after the contract was signed and before its delivery, changed its legal effect. We think it plain that it did not. The letter did not suggest a change in the contract, much less did it purport to make a change. It told of the advice of counsel that each of the guarantors was liable for only one seventh of the whole amount, and it expressed the concurrence of the writers in that advice and opinion. There is nothing to indicate that the Commonwealth Securities Company, or either of the six joint guarantors other than the defendant, had any knowledge of the letter. It was a mere expression of opin-' ion as to the legal effect of the contract in writing. This opinion and the expression of it to one of the seven guarantors did not change the contract, or affect the legal rights of any of the parties. The action cannot be maintained without a joinder of the other necessary parties. The same considerations apply alike to both counts of the declaration.

The presiding judge sustained the demurrer and ordered judgment for the defendant. The grounds of his decision are not stated in the report. Very likely they were those which we have already considered. Other grounds of demurrer have been argued by both parties, and it may be well to consider them.

It is contended that the plaintiff cannot maintain his action as assignee of Abbott and White. An action at law brought in his own name by the assignee of a chose in action is now permitted by the R. L. c. 173, § 4. Upon the averments of the declaration, it appears that all conditions necessary to create a liability upon the guaranty to White and Abbott have been performed, and, so far as appears, there was nothing more to be done by them at the time of the assignment. The conveyance simply worked a transfer of their right to receive a payment from the guarantors, without affecting the interests of the guarantors. The decisions in Boston Ice Co. v. Potter, 123 Mass. 28, and Pike v. Waltham, 168 Mass. 581, cited by the defendant, are not applicable to this case.

- Nor can a successful defense be made under the R. L. c. 74, § 7. One of the purposes of this statute is to prevent the making of gambling contracts in the form of sales of stock. This is not an action upon a contract for a sale of a certificate of stock of which the party contracting to sell is not the owner. It is a contract contemplating the performance of various conditions. Among them were the organization of a corporation with a certain capitalization of stock, and the purchase by the corporation of the property of another corporation, and the selection of a part of the directors in a specified way, and the sale of a certain number of shares of this stock to the Commonwealth Securities Company, all of which, according to the averments of the declaration, have been performed. The contract declared on is not void under the statute just cited.

The pleadings and the form of the report leave us doubtful in regard to the order that should be entered. The case was heard upon issues of law, and from the fact that the judge ordered judgment for the defendant after sustaining the demurrer, and then reported the case, we infer that the plaintiff did not desire to amend his writ. There was no formal joinder of an issue of law upon the answer in abatement. On a decision of such an issue against the plaintiff, or upon a similar decision on the demurrer, judgment for the defendant would follow, unless the plaintiff moved to amend his writ. The entry is to be judgment for the defendant, unless within fifteen days the plaintiff shows cause for some other disposition of the case in the Superior Court.

So ordered.