Davis v. Cress

• Decision Date: 20 May 1913
• Citation: 101 N.E. 1081,214 Mass. 379
• Parties: DAVIS v. CRESS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 379

101 N.E. 1081

DAVIS v. CRESS.

Supreme Judicial Court of Massachusetts, Middlesex.

May 20, 1913

SYLLABUS

This was an action on contract, based on a memorandum attached to the declaration. The memorandum consisted of a letter, signed by defendant, addressed to the plaintiff, and read as follows:

'Referring to the conversation we had regarding your compensation for placing the Christy razor proposition in Great Britain, I beg to state that whether you make the sale yourself, or I do, with your assistance or without your assistance, I will pay you 10 per cent. of the gross sum we receive; but it is understood that this applies only to the tools, plant etc., we supply to the proposed English company, and not to any manufactured goods we may supply until the English factory is in operating order.'

The defendant was a stockholder and treasurer of the R. J Christy Company, and he sought to escape liability on the ground that the contract was made with the corporation.

The judge filed his decision in court June 24, 1912, and notified counsel for both parties the following day, and on that day plaintiff's attorney wrote the presiding judge a letter requesting that plaintiff's rights be reserved in the matter of exceptions to the requests, findings and rulings refused. Two days later the presiding judge replied by letter, stating that the would notify the clerk of the court that plaintiff had saved exceptions to the refusal to rule as requested, to the findings and rulings of the court. Defendant's attorney and the clerk were not notified by plaintiff's attorney of any claim of exceptions. Fourteen days after the parties were notified of the decision plaintiff's bill of exceptions was filed in court, and on the same day a copy was filed with defendant's attorney.

COUNSEL

Powers & Hall, of Boston, for plaintiff.

Edwin C. Jenney and Sumner Robinson, both of Boston, for defendant.

OPINION

BRALEY J.

The plaintiff's exceptions were duly saved and are properly before us. R. L. c. 173, § 106; St. 1906, c. 342, § 3; St. 1911, c. 212; Richards v. Appley, 187 Mass. 521, 73 N.E. 555; Graves v. Hicks, 194 Mass. 524, 80 N.E. 605. It is manifest however that the action cannot be maintained unless the letter declared on is the personal contract of the defendant. The evidence abundantly showed, and the judge has found, that it constitutes part of an oral contract between the plaintiff and the corporation of which the defendant was treasurer. A contract not required by law to be in writing may be partly oral and partly written, and where the parties have not put the entire agreement in writing, evidence that the portion in writing does not constitute the completed contract, or to show what the contract really was, is always admissible. Stewart v. Thayer, 170 Mass. 560, 562, 49 N.E. 1020; Com. v. Nat. Contracting Co., 201 Mass. 248, 87 N.E. 590; Potter v. Hopkins, 25 Wend. (N. Y.) 417; Marsh v. Dodge, 66 N.Y. 533; Hussey v. Horne Payne, 4 A. C. 311. The plaintiff testified that he was ignorant of the defendant's official position, but the finding of the judge, upon all the evidence, that at the inception of the agreement the plaintiff understood the defendant was acting for the company, is conclusive. American Malting Co. v. Souther Brewing Co., 194 Mass. 89, 80 N.E. 526.

If the closing language of the letter received by the plaintiff after he had entered upon his employment, ...