Creighton v. Elwell

• Decision Date: 15 January 1923
• Citation: Creighton v. Elwell, 243 Mass. 580, 137 N.E. 737 (Mass. 1923)
• Parties: CREIGHTON v. ELWELL.
• Court: Supreme Judicial Court of Massachusetts

243 Mass. 580

137 N.E. 737

CREIGHTON

v.ELWELL.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 15, 1923.

Exceptions from Superior Court, Suffolk County; Marcus Moton, Judge.

Action by George A. Creighton against William D. Elwell, with trustee process, to recover money alleged to be due under a contract guaranteeing the payment of a dividend on certain corporate stock.Verdict for plaintiff, and defendant brings exceptions.Exceptions sustained.

The instrument sued on is set out in the opinion.Defendant requested instructions that on all the evidence plaintiff was not entitled to recover, and that there was no ambiguity in the writing, and other instructions as to the constructing of such writing.The court refused such requests, and left it for the jury to determine whether there was any limitation upon the duration of the guaranty.William J. Barry, of Boston, for plaintiff.

P. H. Kelley, of Boston, for defendant.

CARROLL, J.

This action is to recover on a written guaranty given to the plaintiff by the defendant.It was dated April 21, 1911, and is as follows:

‘Mr. George A. Creighton, Lynn, Mass.-My Dear Mr. Creighton: In accordance with your instructions I have put you down for $1,000 of the underwriting of the Eastern Canada Fisheries, Ltd.This entitles you to 10 shares of preferred stock and 20 of the common.

‘Payments are 10 per cent. on the amount, beginning May 1st.In regard to the dividend on the preferred stock, I would say that I will personally guarantee a 7 per cent. dividend on your $1,000 preferred stock.

‘Very truly yours,

‘[Signed]Wm. D. Elwell.’

Dividends on the preferred stock of the Eastern Canada Fisheries, Limited, were paid to the plaintiff in the years 1912 to 1917, inclusive.He contends that the guaranty of a 7 per cent. dividend by the defendant was to continue as long as he(the plaintiff) was the owner of the stock.He testified that he paid $100 a month for 10 consecutive months, until the subscription price had been fully paid, and that he could not recall the conversation between himself and the defendant with reference to the purchase of the stock, and had no present memory of such conversation.The defendant testified, without objection, that the plaintiff asked concerning dividends; that nothing was said to him as to when dividends would be paid; that the plaintiff inquired whether he would be paid the dividend while he was paying for the stock, and the defendant answered:

‘We didn't know when the dividends would be paid, and to satisfy Mr. Creighton I guaranteed a year's dividend on the stock.’

The defendant further testified that, when the second payment of $70 was made, he told the plaintiff that he did not own him anything, whereupon the plaintiff said:

‘Never mind, you can make it up out of my business.’

In the superior court there was a verdict for the plaintiff.

The agreement was in writing and its construction was for the court.The parties are bound by the contract as written; this rule is not affected by the fact that parol evidence was admitted without objection.Mears v. Smith, 199 Mass. 319, 85 N. E. 165;Black v. Bachelder, 120 Mass. 171.The defendant's guaranty was that ‘a 7 per cent. dividend’ would be paid.It was a guaranty of a ‘dividend’ on the preferred stock.In our opinion, these words do not imply a...