133 Mass. 309 | Mass. | 1882
The instruction to the jury, “ that if any consideration other than the one declared upon is shown to have been actually paid or received, this is not a variance which prevents the plaintiff’s recovery, but the action may still be maintained,” was erroneous. The consideration must be proved as alleged. Stone v. White, 8 Gray, 589.
The declaration alleged that the defendant’s promise was “ in consideration that the plaintiff would assent to the election of William H. Pray as manager of the American Carpet Lining Company, in the defendant’s place,” &e. There was evidence that the consideration of the defendant’s promise was that the plaintiff would vote for the election of Pray as the manager, and also would vote to increase the salaries of the president, treasurer, clerk and manager. If this was the contract between the parties, the defendant would not be liable unless the plaintiff proved that he had done both these things. The declaration does not describe any such contract, and it does not correctly allege either the whole consideration proved or any part of it.
The necessity of proving the consideration of the promise of the defendant, as laid in the declaration, must be distinguished from the necessity of alleging everything that is promised by the defendant. Brackett v. Evans, 1 Cush. 79. Neither can an amendment to the declaration after verdict be permitted in this case, as was done in Cleaves v. Lord, 3 Gray, 66, in Stone v. White, ubi supra, and in many other cases.
The agreement of the plaintiff, as stockholder in a private business corporation, to vote for Pray as manager, and to vote to increase the salaries of the officers, including that of the
Whether it was not void as against public policy, even if all the stockholders consented to it, is a question of great difficulty; and even if the consent of all the stockholders to the making of it would render it valid, whether their assent to the plaintiff’s voting, after they had knowledge that he had made it, would render it valid, although it was not made for them or in their interest, and was made without their knowledge, would require careful consideration. As it is not absolutely necessary to decide these questions in order to dispose of these exceptions, and as the exact facts in regard to the assent of the other stockholders to the plaintiff’s voting for Pray as manager, pursuant to his agreement, do not appear in the exceptions, we express no opinion upon them.
It does not appear that the agreement of the plaintiff to vote to increase the salaries was made with the consent of the other stockholders, or was known to them, and no instructions appear to have been given to the jury upon this part of the consideration ; and, under the instructions of the court, that the action could be maintained upon any other consideration than the one declared on, the jury may have found their verdict for the plaintiff solely on the ground of the executed agreement of the plaintiff to vote to increase the salaries as a consideration of the promise of the defendant. Besides, if this agreement was a part of the consideration of the defendant’s promise, and was void as against public policy, it taints the whole contract. The promise of the defendant was single and indivisible, and the illegal part of the contract cannot be separated from the rest. Perkins v. Cummings, 2 Gray, 258.
We do not understand what the “bonuses” are which are mentioned in the exceptions, but it has been assumed by both parties at the argument that they were something valuable, which could lawfully be sold and assigned. The instruction of the court, upon what constituted a payment of the bonuses by the company, was sufficiently favorable to the defendant.
Exceptions sustained.