New England Dredging Co. v. Rockport Granite Co.

• Decision Date: 20 June 1889
• Citation: 149 Mass. 381,21 N.E. 947
• Parties: NEW ENGLAND DREDGING CO. v. ROCKPORT GRANITE CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 381

21 N.E. 947

NEW ENGLAND DREDGING CO. v. ROCKPORT GRANITE CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1889

COUNSEL

J.C. Coombs and E.P. Payson, for plaintiff.

J.O Telle, for defendants.

OPINION

HOLMES J.

This case comes before us upon demurrer to a bill brought to charge the defendants upon two instruments under seal, called "Contracts B and E," by which the plaintiff covenanted to do certain dredging and filling, which it has done, and the other parties to the instrument agreed to pay for the work. Contract B was a subcontract for part of the work called for by a contract, under seal, made by the Rockport Granite Company and Clapp & Ballou with the commonwealth, on September 29, 1873, to build sea-walls, and to do some filling upon South Boston Flats. This is called "Contract A." Contract E bears a similar relation to a simple contract, called "D," made by Clapp & Ballou with the Boston & Albany Railroad Company, on September 21, 1874, to do similar work to that under A, upon adjoining territory.

On February 7, 1874, the Cape Ann Granite Company agreed under seal, by a contract called "C," with the Rockport Granite Company and Clapp & Ballou that it should have one-third interest in the contract A with the commonwealth and in the contract B with the plaintiff; and, "as between the parties" to C, should have the same rights and liabilities as if it had joined in A and B. We will take it that both the defendant companies had interests also in D and E when made. On October 24, 1874, these companies sold out their interest to Clapp & Ballou, and took a bond of indemnity. The plaintiff did not know of the interest of the Cape Ann Granite Company until after the latter had sold out. It is alleged that the effect of the several contracts mentioned, which are all set forth, was that the defendants were "partners or quasi partners of Clapp & Ballou, and are now subject to the liabilities, accordingly, upon contracts B and E, herein sought to be enforced."

The first of the contracts sued upon, B, purports to be made between "the Rockport Granite Company, *** George Clapp and Frederic K. Ballou, both of Boston, *** partners under the style of 'Clapp & Ballou,' " parties of the first part, and the plaintiff. This contract was made on September 29, 1873, before the Cape Ann Granite Company had acquired any interest in the subject-matter; and, apart from the more general difficulty arising from its being under seal, to which we shall advert in dealing with E, there is no ground of either form or substance for the suggestion that the Cape Ann Granite Company was a party to it. Clearly it was not a party to it when made; and if, when made, the contract was not made on behalf of the Cape Ann Company, as was the case in Cady v. Shepherd, 11 Pick. 400; Holbrook v. Chamberlin, 116 Mass. 155; Ahrend v. Odiorne, 125 Mass. 50,--that company could not become a party to it by ratification. The meaning of ratification is, and always has been, the adoption of an act purporting to be done or, at least, done in fact on behalf of the ratifier. Y.B. 30 Edw. I., 128; 7 Hen. IV., folios 34 35, pl. 1; Godb. p. 109, pl. 129; Wilson v. Tumman, 6 Man. & G. 236. In order to bind the Cape Ann Company, a new and substituted contract would be necessary, and no such contract is alleged.

Some reliance was placed on contract C, by which the Cape Ann Company afterwards became interested in B and A. But the undertaking there is expressly limited to liability as between the parties to the instrument, and does not purport to be for the benefit of the plaintiff. Such a contract confers no rights upon strangers who may happen to benefit by its performance. Flynn v. Insurance Co., 115 Mass. 449; Montague v. Smith, 13 Mass. 396, 405; Bank v. Rice, 107 Mass. 37; Prentice v. Brimhall, 123 Mass. 291. No doubt the covenantee, either in the instrument or without it, may declare a trust in favor of a third person. Bailey v. Insurance Co., 114 Mass. 177; Lloyds v. Harper, L.R. 16 Ch.Div. 290. But there is nothing of that sort here. See Bank v. Grand Lodge, 98 U.S. 123.

Contract E was made on September 21, 1874. It purports to be made "between George Clapp and Frederic K. Ballou, both of Boston, in the county of Suffolk, and commonwealth of Massachusetts, party of the first part, and the New England Dredging Company." Like B, it is under seal. Therefore, no one can be sued upon it as a covenantor except a party to the instrument. Huntington v. Knox, 7 Cush. 371; 374; McArdle v. Manufacturing Co., 15 Ir.Law R. (N.S.) 146, 153; Ward v. Motter, 2 Rob. (Va.) 536, 562; Childs v. Shoemaker, 1 Wash.C.C. 494, 496.

It was suggested that we might read Clapp & Ballou as a partnership name embracing the defendants, assuming that a partnership is disclosed by the bill. But, if it would be permissible to show that a single name, seemingly that of an individual, was in truth also a partnership name, and that it was used as such in a deed, (Butterfield v. Hemsley, 12 Gray 226,) in this case there are two names used, not in conjunction, but separately, and at length. The contract purports to describe two men, and no more, as plainly as if it had said so in terms. There is no pretense that the defendants did business under the names of Clapp & Ballou in any form or on any occasion, unless on this one; and the document excludes their having done so here. When that is the case, the contract cannot be contradicted. See Humble v. Hunter, 12 Q.B....