Am. Mercantile Exch. v. Blunt

• Decision Date: 19 November 1906
• Citation: 66 A. 212,102 Me. 128
• Parties: AMERICAN MERCANTILE EXCHANGE v. BLUNT.
• Court: Maine Supreme Court

66 A. 212

102 Me. 128

AMERICAN MERCANTILE EXCHANGE

v. BLUNT.

Supreme Judicial Court of Maine.

Nov. 19, 1906.

Report from Supreme Judicial Court, Penobscot County.

Action by the American Mercantile Exchange against A. G. Blunt Heard on report Judgment for defendant.

Assumpsit on a contract made November 24, 1897, by the plaintiff corporation, a collection agency, and the defendant in relation to the collection of claims placed in the hands of the plaintiff by the defendant. The plaintiff alleged that the defendant had failed to perform his part of the contract and that in consequence of this failure the defendant owed the plaintiff $75 for subscriptions. The action was brought to recover this sum of $75.

The writ was dated May 5, 1905. Plea, the general issue, with the following brief statement:

"And for brief statement defendant further says that the alleged several promises claimed in the declaration to have been made by the defendant were not made within six years before the commencement of said suit."

Tried at the April term, 1906, of the Supreme Judicial Court, Penobscot county. At the conclusion of the testimony the case was "reported to the law court for determination upon so much of the evidence as is legally admissible."

The case appears in the opinion.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, PEABODY, and SPEAR, JJ.

T. P. Wormwood, for plaintiff. Martin & Cook, for defendant.

SPEAR, J. This action is based upon a contract wherein the plaintiff avers that the defendant has failed of performance on his part, and in consequence of such failure is indebted to the plaintiff in the sum of $75. The essential part of the contract under which the plaintiff claims is as follows:

"American Mercantile Exchange, Incorporated.

"Nov. 24, 1897.

"In consideration of an annual contract in above agency, I hereby agree to pay said agency, or order, all sums of money as collected out of accounts placed in said agency's hands by me, whether such collections or settlements are made through said agency's office, or by me through my office, or by any other person in my behalf, until the same shall amount to twenty dollars, and I further agree to send to the said agency on or before ten days from date, ten accounts, otherwise the payment of twenty dollars shall become due and payable to said agency, or order, on demand."

This agreement was properly executed by the plaintiff and defendant.

"To American Mercantile Exchange:

"We hereby agree to subscribe to your exchange under the following special terms and conditions:

"(1) You will employ your system to collect all claims we may place in your hands, suing where you deem advisable, and using legal means to enforce payment from debtors in any part of the United States and Canada, and all such claims shall be subject to our control or withdrawal, unless legal action has been taken, and all debts that may be advertised for sale shall be held at the figures quoted by us."

It will be observed by the use of the language in the first clause of this stipulation. "you will employ your system to collect all claims," etc., that the written contract herein set forth did not state or contain all the elements of the contract. What the plaintiff's system above alluded to was is not stated. The testimony, however, fully describes the "system" employed by the agency in the collection of accounts. In answer to the question: "You have stated that when you went to Mr. Blunt you explained to him the method of the agency. Now, will you explain to us what that method was?"—the agent of the plaintiff who executed the contract answered in detail as follows: "At that time the method was to take the list of claims on a blank form, collecting 10 cents for each claim to cover postage. A series of four letters were employed by the agency, the first notifying that the account was due and unpaid, and asking them to call on their creditor and make some settlement, and informing them at the same time that the agency in no case handled the money. After a certain length of time which shows on the list, I can't remember now, a second letter was sent informing them of the fact that they who did not pay would be reported to the trade if it was still left unpaid. After a certain length of time a third one was sent informing them that they would be sued if it was not paid, and a fourth one that when judgment was obtained the account would be advertised for sale by public posters, and inclosing them a copy of one of the posters that had already been published."

This "system," the terms of which were not incorporated in the written contract, nevertheless, in view of the purposes and object of the defendant, became, by the specific written allusion to it, a material and important feature in the performance of the contract on the part of the plaintiff. The defendant in the written stipulation, prescribing its duties, required that the plaintff should use its "system." Its "system" at the time the contract was executed was explained by the plaintiff's agent as above set forth. When so explained, the terms of his interpretation became as much a part of the contract as though they had been contained in a separate written document. Therefore, the whole...