Gagnon v. Sperry & Hutchinson Co.

• Decision Date: 19 October 1910
• Parties: GAGNON v. SPERRY & HUTCHINSON CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 547

92 N.E. 761

GAGNON v. SPERRY & HUTCHINSON CO.

Supreme Judicial Court of Massachusetts, Worcester.

October 19, 1910

Oct 19, 1910.

On the question whether there was a contract, defendant requested the court to charge: First, on the evidence, plaintiff is not entitled to recover; second, there is no evidence on which the jury can find that an exclusive contract in writing was made; third, there is no evidence on which the jury can find that a written contract was executed and delivered to plaintiff; fourth, if there was no written contract, there can be no recovery; and, fifth, there is no evidence on which the jury can find a completed contract between the parties. The court gave the fourth instruction, and refused to give the others, and then charged as follows:

'Your first inquiry when you go to your jury room is, Was there a written contract between Mr. Gagnon and the Sperry-Hutchinson Company. This is an action of contract and it is essential that the plaintiff prove the contract. And that means an agreement between two parties to do or not do something. So that although there were a thousand stamps sold to Mr. Gagnon and numerous small books given to hand out to the customers to stick these stamps into, and although the Sperry-Hutchinson Company put their sanction upon the outer walls of the store and in the public press, holding out Gagnon as a man who dealt in these stamps, even if all that was done, as I understand it is not disputed it was, unless there was an agreement in writing that Gagnon should have this brand of trading stamps so long as he continued in business there is no right of action, because, to repeat just what I have said, the case proceeds upon the assumption there was a contract in writing. Now, you will have in mind that it is denied by the Sperry-Hutchinson Company, and you have on the other hand that it is asserted that there was a paper signed in Gagnon's store when Mr. Demmon, another representative of the Sperry-Hutchinson Company was present, and the father and the son and certainly one of the daughters is claimed to have been present. If there was a completed agreement entered into and signed at that time it would be effective and binding, providing the parties understood that it became effective at the time of signing, although it was taken away for some writing in respect to the streets to be added to it. If it was the understanding of the parties that it was still incomplete, and that something more was to be done before it should be effective and binding, then it would not be effective and binding at the time the signatures were affixed, and if at the time the signatures were affixed, if that were the understanding of the parties, so that it became at that instant effective and binding, although there was some subsequent writing to be added, nevertheless that would be an agreement complete. Ordinarily the last thing in the making of a contract is the putting of the name of the parties to it. So, as a general rule, in practical business life the undertaking is not complete until the signatures are affixed, and if something remains to be done it is incomplete. But if the parties agree at the time their signatures are affixed it is a binding contract, it is a binding contract, even if there is something else to be added to it in the form of writing. Then your first inquiry, if you find there was an agreement in writing to the effect that Gagnon was to have stamps of Sperry-Hutchinson & Co. so long as he continued in business, then, gentlemen, there remains but one other question and that is the question of damages. If this is not established by a fair preponderance of the evidence, you do not need to go further, and your verdict is for the defendant.'

COUNSEL

D. I. & Thos. L. Walsh, for plaintiff.

C. M. Thayer and J. O. Sibley, for defendant.

OPINION

HAMMOND, J.

1. As to liability. There was evidence that a paper writing was signed by the parties, in the plaintiff's store, on October 3, 1908, and that after it was signed Demmon, the agent of the defendant, took it away, so that he might print on the back of it a statement that the plaintiff was 'to have exclusive right on Daniels street,' a part of the Cleghorn district. The question whether it was the understanding of the parties that the contract as signed should then and there at the time of the signing become operative and binding upon them, irrespective of the time when the indorsement should be printed upon the back, arose and was submitted to the jury under instructions which permitted them to find for the plaintiff only in case they should find such an understanding. The verdict therefore shows that they found in favor of the plaintiff on this question. Upon a careful reading of the record we are of opinion that the question was one of fact for the jury, and their decision cannot be said as matter of law to be unwarranted. In view of the manner in which the case was thus sent to the jury and of...