Blackmer v. Davis

• Decision Date: 24 June 1880
• Citation: 128 Mass. 538
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Hiram M. Blackmer v. Elnathan Davis & another

128 Mass. 538

Hiram M. Blackmer v. Elnathan Davis & another

Supreme Court of Massachusetts

June 24, 1880

Argued September 30, 1879

Worcester. Contract against Elnathan Davis and Francis G Davis, to recover a balance of $ 200, alleged to be due the plaintiff, upon a contract to build a shop. The declaration alleged that the plaintiff had performed his part of the contract; but the defendants refused to perform their part. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows:

The plaintiff offered evidence tending to show that he had some conversation with the defendant Francis G. Davis, with reference to building a shop; that he made a verbal arrangement with Francis to build the shop, and that Francis then drew up the following contract: "This contract made and entered into this fifth day of July 1876, by and between Hiram Blackmer, of Worcester, and Francis G. Davis, of Millbury, witnesseth: First, the said Hiram Blackmer, for himself and his legal representatives, in consideration of the promise and agreement hereinafter written, hereby covenants and agrees to build upon land of the said Davis, in Millbury, a frame building in a good and workmanlike manner and according to the specifications hereto annexed; that he will finish said building ready for painting and plastering on or before October 1st, 1876. Second, the said Davis, for himself and his legal representatives, in consideration of the foregoing, hereby covenants and agrees to pay the said Blackmer upon the completion of said building, according to the specifications hereto annexed, the sum of fourteen hundred and thirty dollars, of which sum the said Blackmer agrees to take and receive one hundred dollars in carriage-work."

The plaintiff further testified that the contract was signed by Francis and by the plaintiff, but the plaintiff told him at the time he would not go on under the contract, unless Elnathan Davis, who, as the plaintiff had then learned, owned the land, would sign the contract; that thereupon, and before the contract was delivered, Francis took the contract to Elnathan, his father, who then owned the land, and Elnathan signed the contract, and it was delivered to the plaintiff, who performed his part of it; and that only a part of the contract price had been paid. The signatures to the contract appeared in the following order: "Francis G. Davis. Elnathan Davis. H. M. Blackmer."

The plaintiff offered to show by parol, that the defendants and the plaintiff understood that Elnathan Davis signed the contract intending to become surety to it and be bound thereby, and that all the parties understood that he was so bound and intended that he should be. The judge excluded the evidence.

The plaintiff asked the judge to rule as follows: "1. If the defendant, Elnathan Davis, signed the contract with the under standing between the parties that he should be liable as one of the parties thereto, he is liable by the terms of said contract, and an action can be maintained thereon. 2. Parol evidence is competent to show that it was the intention of the parties that Elnathan Davis should be jointly liable to the plaintiff upon the contract. 3. Upon the evidence, the jury would be warranted in finding a joint written contract between the parties, Francis G. Davis and Elnathan Davis of the one part, and the plaintiff of the other part."

The judge refused so to rule; and instructed the jury that it was immaterial with what intent Elnathan Davis signed the contract, or what the intention of the parties was in relation to it; and that no action could be maintained against Elnathan Davis thereon; that if, after the written contract was made between Francis G. Davis and the plaintiff, Elnathan Davis and Francis G. Davis jointly made a verbal contract with the plaintiff to go on and erect the building specified in the contract and they would pay him for it, and he performed the contract on his part, the defendants were bound to pay him therefor.

The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.

Exceptions overruled.

F. T. Blackmer, for the plaintiff.

J. Hopkins, for the defendants.

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

OPINION

Colt, J.

The action is against the defendants as joint promisors, to recover the balance due upon a contract with the plaintiff to build a shop, which it is alleged had been performed. Under the declaration in this case, the right to recover would be established by proving the performance of either a written or verbal contract with the defendants jointly. The plaintiff relied on the written contract set out in the bill of exceptions. The plaintiff and Francis G. Davis were the only parties to this contract as originally drawn up. There was evidence tending to show that the plaintiff refused to go on with the work, unless the other defendant, Elnathan Davis, would also sign the contract; and thereupon he subscribed his name to it, without any addition to or alteration of its terms, and it was delivered to and accepted by the plaintiff, who then went on and completed the work for which he seeks compensation. It was with reference to the written contract that all the rulings excepted to by the plaintiff were made. Under instructions not excepted to, the plaintiff failed to establish an oral contract made with the defendants jointly for the work to be done.

The judge excluded parol...