Arcade Malleable Iron Co. v. Jenks

• Decision Date: 04 January 1918
• Citation: 229 Mass. 95
• Parties: ARCADE MALLEABLE IRON COMPANY v. HARRY E. JENKS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 95

ARCADE MALLEABLE IRON COMPANY v. HARRY E. JENKS.

Supreme Judicial Court of Massachusetts, Worcester.

January 4, 1918

October 1, 1917.

Present: RUGG, C.

J., LORING, BRALEY DE COURCY, & PIERCE, JJ.

Frauds, Statute of. Contract, In writing. Evidence, Extrinsic affecting writings.

In an action on an alleged guaranty by the defendant, one H E J, of the payment for certain goods furnished by the plaintiff to a corporation, called the G C Co., of which the defendant was the treasurer, the statute of frauds was pleaded, and the plaintiff to satisfy the statute relied on the following letter addressed to the plaintiff: "I will personally see to it that your bill is met on the 15th of each month . . Yours very truly, G C Co., By H E J." There was evidence, which had been admitted without objection, that the defendant had promised orally to guarantee the account and that he had failed to answer a letter from the plaintiff written on receipt of the letter quoted above, stating "We also note that you will personally guarantee the account." Held, that, even considering as extrinsic circumstances the oral promise and the unanswered letter, neither of which was admissible in evidence, the alleged memorandum as matter of law was not signed by the defendant and could not be found by a jury to have been signed by him.

In the same case the plaintiff relied upon a letter signed by the defendant in a subsequent correspondence between the parties as completing a memorandum to satisfy the statute when coupled with the letter quoted above, but it was held that, although such a coupling might have been resorted to if the defendant in the subsequent letter had acknowledged the guaranty contained in the first letter as having been made by him, this was not the case, and the subsequent letter, which was not a memorandum in itself, did not help the matter.

Although where the words of a contract in writing are ambiguous the extrinsic circumstances under which it was written may be shown by oral evidence to enable the court to view the words in the same light that the parties did, yet where the extrinsic facts are not in dispute, or after their existence has been shown, the construction of the ambiguous instrument in the light of these circumstances is for the court.

CONTRACT by a manufacturing corporation on an alleged guaranty by the defendant of the payment of the price for several lots of castings furnished by the plaintiff to the Grip Coupling Company, a corporation. Writ dated February 24, 1914.

The declaration contained three counts, each alleged to be for the same cause of action. The only count relied upon by the plaintiff at the trial was the third, which was as follows:

"Count Three. And the plaintiff further says that relying upon the guaranty of the defendant hereinafter set forth, it sold and delivered to the Grip Coupling Co., a corporation having its usual place of business in said Ware, a lot of malleable iron castings, the kinds thereof and prices for the same, the total value thereof, and the dates of shipments to said Grip Coupling Co., being shown in the itemized account hereto annexed marked Exhibit `A,' the said goods having been ordered by the said defendant as the treasurer of the said Grip Coupling Co., and the plaintiff further says that at the time the said goods were ordered as aforesaid and prior to the manufacture or delivery of any part thereof and as an inducement to, and the consideration for, the said sale and delivery, the said defendant guaranteed in writing the payment by the said Grip Coupling Co., of the goods so ordered by him for said company and made himself personally responsible therefor. A copy of the said writing with a copy of the reply thereto by the plaintiff being hereto annexed marked respectively Exhibit `B' and Exhibit `C.' And the plaintiff further says that demand for payment of the amount due for the said castings was duly made upon said defendant.

"Wherefore the plaintiff says the defendant owes it the said sum of six hundred and forty-four and 65/100 ($644.65) dollars, the value of the said malleable iron castings of which the defendant guaranteed payment."

Exhibit A contained the account, which was undisputed. Exhibit B was as follows:

"June 25th, 1912. "Arcade Malleable Iron Co.,

Worcester, Mass. Attention H. P. Buckingham. "Gentlemen:

In regard to my agreement to write you made when you were here in reference to your bills. I will personally see to it that your bill is met on the 15th of each month.

Please find enclosed statement as per your request. "Yours very truly,

Grip Coupling Co. By H. E. Jenks." "H. E. J./P.

Exhibit C was as follows: "June 26, 1912.

"Grip Coupling Co.,

Ware, Mass. Attention Mr. H. E. Jenks, Treas.

"Gentlemen: We are in receipt of your letter of June 25th, with the enclosed statement of assets and liabilities as of May 1st, 1912. We also note that you will personally guarantee the account and see that our bill is met on the 15th day of each month and we thank you for this attention. We assure you that we will use every effort to give you good castings and will gladly do anything we can at any time to accommodate you.

Again thanking you, we are "Yours truly,

Arcade Malleable Iron Co. H. Paul Buckingham,

President." "HPB/HIK

The answer among other matters set up as a defence the statute of frauds as follows: "The defendant says that the action declared on in the plaintiff's declaration and in each count thereof is on account of a special promise alleged to have been made by the defendant to the plaintiff to answer for the debt of another; that such promise upon which said action is brought, or some memoranda or note thereof, is not in writing and signed by the defendant or by any person thereunto by him lawfully authorized, as required by the provisions of R.L.c. 74, Section 1."

In the Superior Court the case was tried before King, J. The items furnished and their value namely, $559.59, were not in dispute and it was agreed at the trial that, if the defendant was liable at all, he was liable for the sum named. The evidence, as admitted by the judge without objection, is described in the opinion.

The additional correspondence relied on by the plaintiff, which is referred to in the opinion, was as follows:

"November 20, 1912. "Mr. H. E. Jenks,

Ware, Mass. "Dear Sir:

We have failed to receive the remittance from you this month for your October account which amounts to $352.97. Our understanding was that this account should be paid promptly on the 15th of each month or in case it was not that we were to hold up shipments on castings and hold up the moulding of your orders until same was paid. This we do not like to do because we know it causes you a lot of inconvenience. Will you kindly give this matter your attention and forward us a check for the above amount.

"Yours truly, Arcade Malleable Iron Co.

Alonzo G. Davis, Treasurer." "AGD/HIK "H. E. Jenks,

Upholsterer, Undertaker and Funeral Director. 50 West Main Street.

Ware, Mass. November 29, 1912. "Mr. H. Paul Buckingham,

Worcester, Mass. "Dear Sir:

I have here a letter from Mr. Davis about payment of the Grip Coupling Co. bill. I hope you can arrange to send castings right along as usual and I will send you a check on the 15th of next month for everything. Mr. Merriam is to resign next Tuesday as manager, president and director. Then the people here are going to put in money to properly finance the business. If Mr. Davis cares to call up Mr. Hyde, he can confirm my statement, your money is sure, but collections have been very slow this month. I could send you a 30-day note if that will do you any good but I know Mr. Davis' attitude in regard to notes. Hoping you can see your way clear to accommodate the company for the next 15 days, I am

"Very truly yours, H. E. Jenks."

The judge submitted the case to the jury upon the third count. His instructions to the jury are described in the opinion. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

The case was submitted on briefs.

G. D. Storrs, for the defendant. W. H. Whiting, for the plaintiff.

LORING, J. In the count on which the plaintiff corporation went to trial it alleged that "the said defendant guaranteed in writing the payment by the said Grip Coupling Co., of the goods so ordered by him for said company and made himself personally responsible therefor. A copy of the said writing with a copy of the reply thereto by the plaintiff being hereto annexed marked respectively Exhibit `B' and Exhibit `C.'" A facsimile copy of Exhibit "B" is set forth above. Exhibit "C" was an unanswered letter from the plaintiff to the defendant dated June 26 1912. We will deal with that later on. At the trial evidence was introduced without objection on the defendant's part that at a meeting in June between two officers of the plaintiff corporation and the defendant (who was treasurer of the Grip Company) the defendant was told that unless he "would personally guarantee the account" of the Grip Company the plaintiff would not continue to sell to it and thereupon the defendant agreed to personally guarantee the account. The defendant took the stand and denied that he ever agreed to guarantee the account of the Grip Company. The Grip...