Henry N. Clark &Amp; Another v. William A. Gordon

• Decision Date: 21 November 1876
• Citation: 121 Mass. 330
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Henry N. Clark & another v. William A. Gordon

121 Mass. 330

Henry N. Clark & another v. William A. Gordon

Supreme Court of Massachusetts

November 21, 1876

Suffolk. Contract. The declaration alleged that the plaintiffs demised a certain estate to the Cumberland Stone Company, by deed, a copy of which was annexed and is printed in the margin ^[*] that said deed was executed by said Cumberland Stone Company, being a corporation, by its president, the defendant, was accepted by said Cumberland Stone Company, and, in pursuance thereof, said Cumberland Stone Company entered into and are still in the possession of said estate; that, in consideration of the demise, the Cumberland Stone Company agreed to pay the rent reserved in said deed, and the taxes on the estate; that said company failed to pay the same, and they were still due; that the defendant agreed, for a good consideration, in writing, under seal, to guarantee to the plaintiffs the payment of said rent and taxes, in and by the following instrument: "In consideration of one dollar to me paid by the within named Clark & Leatherbee, I hereby guarantee to them and their assigns the payment of rent and taxes as stipulated for in the within lease, and the performance of all the agreements and covenants contained in the within lease. Witness my hand and seal this eighth day of October, 1873. W. A. Gordon. [Seal.]"

The declaration then set forth an account in detail of the rent and taxes due, alleged demand on the Cumberland Stone Company, and notice of the non-payment thereof to the defendant, and that the defendant owed the plaintiffs the several sums set forth.

The defendant demurred, on the ground that the declaration did not state any cause of action against the defendant; and "the defendant, for specification of the particulars in which said defects exist, says that the copy of the alleged lease as set forth in said declaration does not show that such lease was ever signed or executed by the Cumberland Stone Company, the alleged lessee, or by any person for or in behalf of said company. And so it does not appear by the plaintiff's declaration that there was any existing covenant, contract or liability, to or upon which the alleged guaranty of the defendant applied or took effect."

In the Superior Court, the demurrer was overruled, judgment was entered for the plaintiffs; and the defendant appealed.

Judgment affirmed.

G. H Kingsbury, for the defendant.

A Hemenway, for the plaintiffs, was not called upon.

Endicott J. Ames & Lord, JJ., absent.

OPINION

Endicott

The agreement purports to be a lease, entered into by the plaintiffs and the Cumberland Stone Company, wherein the plaintiffs are the lessors and the company the lessee. It is executed by the plaintiffs and by William A. Gordon, the defendant. There are no words to indicate in what capacity or in whose behalf Gordon signed it. But the declaration alleges that the company accepted it, and entered at once into occupation of the premises described in the lease, and continued in occupation under the lease at the date of the writ. These allegations are admitted by the demurrer.

Whatever may have been the defects in the original execution of the lease, the company, having treated it as a contract between the plaintiffs and itself, by entering upon and occupying the premises, was bound by its provisions, and became liable to pay the rent and...