Abbott v. Hapgood

• Decision Date: 29 November 1889
• Citation: 150 Mass. 248,22 N.E. 907
• Parties: ABBOTT et al. v. HAPGOOD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 248

22 N.E. 907

ABBOTT et al. v. HAPGOOD et al.

Supreme Judicial Court of Massachusetts, Worcester.

November 29, 1889

November 29, 1889

HEADNOTES

COUNSEL

W.S.B Hopkins, for plaintiffs.

F.P Goulding, for defendants.

OPINION

KNOWLTON, J.

According to the terms of the report in this case, if the demurrer should have been sustained, on grounds which could have been removed by amendment, the plaintiffs are to be permitted to amend. The defendants have made no point upon the use of the present instead of the past tense in the allegation as to the partnership of the plaintiffs, and, if that is materal, it may be corrected by amendment. In each count of the declaration, after alleging that there was a valuable consideration for the defendants' contract, the plaintiffs aver that the contract was reduced to writing, and set out as the contract a writing which shows no consideration nor mutuality, but merely an undertaking on one side. To state the contract truly, they should set out in each count their own agreement which constituted the consideration for the agreement made by the defendants. The substantive grounds of defense rest upon the rulings, and refusals to rule, in regard to the effect of the evidence. There was an attempt to recover under the contracts now before us, by a suit brought in the name of the Penn Match Company, Limited, which is reported in 141 Mass. 145, 7 N.E. 22. In that case the plaintiff was alleged to be a corporation, and the hearing and decision were upon a demurrer which admitted that allegation to be true. If we assume that the limited partnership organized under the laws of Pennsylvania was so far an entity, separate from the persons who were members of it, that it could sue and be sued in this commonwealth as a corporation can, it is quite clear that it was not a party to the contracts declared on. Match Co. v. Hapgood, 141 Mass. 145, 7 N.E. 22. If a contract is made in the name and for the benefit of a projected corporation, the corporation, after its organization, cannot become a party to the contract, even by adoption or ratification of it. Kelner v. Baxter, L.R. 2 C.P. 174; Gunn v. Insurance Co., 12 C.B. (N.S.) 694; Melhado v. Railway Co., L.R. 9 C.P. 503; In re Engineering Co., L.R. 16 Ch.Div. 125. Upon the facts reported in the present case, the defendants, as well as the plaintiffs, must have understood that the limited partnership was only projected, and that the plaintiffs, acting jointly as individuals, or as general partners, constituted the only party who could contract with the defendants in the manner proposed. It is evident that both parties intended to enter into binding contracts. For the purpose of carrying out their agreement to form a limited partnership, "and in the name and for the benefit of the projected company, the plaintiffs applied to the defendants who made the contracts in question, and the plaintiffs made known to the defendants that the projected company would proceed with its organization and would cause a factory to be built for it, only in case they could make a contract with the defendants to furnish the machines."

We are of opinion, in view of the facts known to both parties, that the plaintiffs must be deemed to have been jointly contracting in the only way in which they could lawfully contract, and that they assumed the name "Penn Match Company, Limited," as that in which they chose to do business, in reference to the projected limited partnership, until their organization should be completed and they should turn over the business to the new company, which would be composed of themselves in a new relation. This seems to be warranted by the language of the report, and entirely consistent with their purpose make known to the defendants, and in this way only can...