Lyman B. Brooks Co. v. Wilson

• Decision Date: 26 May 1914
• Citation: 105 N.E. 607,218 Mass. 205
• Parties: LYMAN B. BROOKS CO. v. WILSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 205

105 N.E. 607

LYMAN B. BROOKS CO. v. WILSON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1914

COUNSEL

A. M. Schwarz and S. A. Dearborn, both of Boston for plaintiff.

Geo. L Wilson, of Boston, pro se.

OPINION

LORING J.

This is an action against an attorney at law to recover the price due to the plaintiff for 1,000 steel stock certificate blanks of the Eastern Coal Company, a Massachusetts corporation.

It appeared at the trial that the defendant had signed the order, a copy of which is set forth below. ^[1] He there testified without objection that before this order was signed he had a talk over the telephone with the plaintiff's treasurer or manager, in which he told the treasurer or manager about the financial standing of the Eastern Coal Company----

'and stated that the plaintiff must not look to him for payment of the bill, and that if they took the order they must take it with that understanding.' 'It was undisputed that the second lot of stock certificates (being the lot for the price of which the suit was brought) was sent to defendant's office C. O. D. and that defendant told the messenger to take the certificates back and keep them until plaintiff got its money; and that thereafter the plaintiff voluntarily sent said certificates to defendant's office and that they were received there in his absence and without his knowledge, and that they remained there in the same wrappings as when delivered, and had never been opened or used.'

It further appeared in evidence that:

'This order was a printed form customarily used by plaintiff, and when presented to defendant all parts of the same except such as are underlined in the annexed copy were printed; and the figures '$92.00' after the word 'collect,' and the word 'yes' after the letters C. O. D. had been filled in by plaintiff.'

The judge ruled:

'That this [order] was a contract signed by the defendant and which bound him personally and that they [he] cannot by parol evidence discharge himself from the liability--although there was a principal behind him.'

The case is here on an exception to that ruling.

If the plaintiff's order blank had included the words 'To be paid for,' as well as 'Ordered by,' there would have been no question as to the correctness of the ruling. In that case the order would have been a reduction into writing of the whole agreement made. Where the defendant in terms agrees to pay he cannot show by parol evidence that he did not agree to pay. In the cases relied on by the defendant (Simonds v. Heard, 23 Pick. 120, 34 Am. Dec. 41, and Brown v. Bradlee, 156 Mass. 28, 30 N.E. 85, 15 L. R. A. 509, 32 Am. St. Rep. 430), where it was held that the vendor could hold either the agent or the principal, there were express words of promise in the writing signed by the agent. In such cases:

'The doctrine proceeds on the ground that the principal and agent may each be bound; the agent, because by his contract and promise he has expressly bound himself; and the principal, because it was a contract made by his authority for his account.' Shaw, C.J., in Huntington v. Knox, 7 Cush. 371, 374.

But if the defendant is to be believed, the case presented here is one where it was orally agreed between the plaintiff and the defendant that if the order in question was given, it was to be given by him as agent of the Eastern Coal Company, and that it was to be taken by the plaintiff as the order of the Coal Company, on which the Coal Company alone was to be liable; and where, after that arrangement had been agreed upon by word of mouth, the plaintiff, pursuant to that oral agreement, presented to the defendant one of its order blanks to be filled in by the defendant (who was the agent) which did not contain any promise to pay, but ended with the words 'Ordered by.' It is a case where the whole contract is not reduced to writing but where a written order not undertaking to deal with the whole contract is given pursuant to a verbal arrangement. It is settled that in such a case the verbal arrangement can be shown in evidence. Juilliard v. Chaffee, 92 N.Y. 529; Neal v. Flint, 88 Me. 72, 33 A. 669; The Poconoket, 70 F. 640, 17 C. C. A. 309; Tufts v. Hunter, 63 Minn. 464, 65 N.W. 922; Babcock v. Deford, 14 Kan. 408. The case at bar is particularly like Bradstreet v. Rich, 72 Me. 233, where (as in the case at bar) the promise relied on was an implied as distinguished from an express promise. It was there said that in such a case the express promise made by parol could be shown in evidence. One of the terms orally agreed upon was as to the person who was to be liable for payment if the order was given. The written order does not deal with that term of the proposed trade.

It seems to have been assumed in Isham v. Burgett, 157 Mass. 546, 32 N.E. 907, that the order there in question was not a reduction into writing of the whole contract, excluding evidence of the parol agreement as to who was to be liable for the goods ordered.

It follows that the exception to the ruling made by the judge must be sustained.

As the case is to go back for a new trial, it becomes necessary to pass upon the ruling of the judge admitting the entry in the plaintiff's books in which the plaintiff had charged the certificates to the defendant.

It is stated in the bill of exceptions that:

'The only question then [at the trial] open was the question of the defendant's personal liability, which was all that he contested.'

Under these circumstances it was settled law before the enactment of St. 1913, c. 288, that the entry in the plaintiff's books was not admissible. Kaiser v. Alexander, 144 Mass. 71, 12 N.E. 209. But it is provided by St. 1913, c. 288, that:

'An entry in an account kept in a book * * * shall not be inadmissible in any civil proceeding as evidence of the facts therein stated because * * * it is hearsay or self-serving if the...