Elastic Tip Co. v. Graham
| Decision Date | 19 May 1904 |
| Citation | 185 Mass. 597,71 N.E. 117 |
| Parties | ELASTIC TIP CO. v. GRAHAM. BOSTON WOVEN HOSE & RUBBER CO. v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas H. Sprague, for plaintiffs.
Z. S Arnold and W. G. A. Pattee, for defendant.
The plaintiffs' first contention is that the words, 'I authorize the above offer, and agree to carry the same out if secured within the time named,' converted what was otherwise a written offer by the plaintiffs to the defendant into a written offer by the defendant to the plaintiffs, as explained in Elastic Tip Co. v. Graham, 174 Mass. 507, 55 N.E. 315; that this written offer was accepted by the plaintiffs; that the writing signed by both thereby became a binding agreement and that it is not open to the defendant to add by parol a new term to that agreement, as he now seeks to do, by showing that, when these words were added to the writing, and his signature was attached, and the paper was handed to Mr. Herrick, the defendant 'stated that it was not to take effect and he was not to carry it out unless a sufficient amount of creditors signed to enable him to control the proceedings in insolvency and composition in the insolvency court and get possession of the assets.' With regard to the substance of the thing stipulated for by the defendant when he handed the paper to Mr. Herrick, it is something which was capable of being made effectual in either one of two ways, namely, it could have been added to the offer as an additional term thereof, or the defendant could have made the delivery of the paper in which the offer is stated conditional on the requisite number of creditors coming into the arrangement. In the second case the defendant in legal effect said to Mr. Herrick when the paper was handed to him: 'I intrust this paper to you, not as an offer on my part, but as a paper which is to become an offer on my part when a specified number of creditors signify their intention of making me the offer stated in the body of the instrument; that is to say, of accepting my offer.' Had the paper been sent by the defendant to the plaintiffs directly inclosed in a letter written by the defendant, there would have been no opportunity for the mistake which has happened. But it was delivered to Mr. Herrick, the attorney for the plaintiffs, and apparently through a misunderstanding this condition did not come to the knowledge of the plaintiffs. We are of opinion that the judge was right in instructing the jury that such a condition in delivery could be shown by parol.
It is settled that a completed instrument may be shown by parol to have been delivered on a condition which has not been performed. Faunce v. State Assur. Co., 101 Mass. 279; Watkins v. Bowers, 119 Mass. 383; Davis v. Jones, 17 C. B. 625; Bell v. Ingestre, 12 Q. B. 317; Pym v. Campbell, 6 El. & Bl. 370; Wallis v. Littell, 11 C. B. (N. S.) 369; Juilliard v. Chaffee, 92 N.Y. 529, 535; Benton v. Martin, 52 N.Y. 570; Sweet v. Stevens, 7 R. I. 375; Goddard v. Cutts, 11 Me. 440; Coffman v. Coffman, 79 Va. 504; Westman v. Krumweide, 30 Minn. 313, 15 N.W. 255. It is also settled that a defendant can show by parol that his signature to what purports to be a perfected agreement was to take effect on its being signed by others, and that they have not signed. Butler v. Smith, 35 Miss. 457; Goff v. Bankston, Id. 518; Jordan v. Loftin, 13 Ala. 547. This case comes within those decisions.
The defendants's second contention is that the stipulation was meaningless and void because by reason of the...
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