Nickerson v. Weld
| Decision Date | 08 January 1910 |
| Citation | 90 N.E. 589,204 Mass. 346 |
| Parties | NICKERSON v. WELD et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jas. R. Dunbar and Harrison M. Davis, for appellants Minot and Williams, trustees, and Philip B. Weld.
Felix Rackemann, for appellant Stephen M. Weld.
Eliot N. Jones and Harris Livermore, for appellee
Three questions are raised by the defendants' appeal in this case: (1) Whether the parties completed any contract; (2) whether if so there was any written memorandum thereof signed by the party to be charged sufficient to bind him under the statute of frauds (Rev. Laws, c. 74, § 1, cl. 4); and (3) whether such contract afterwards was rescinded and abandoned by mutual consent.
1. The plaintiff and the defendant Stephen M. Weld, hereinafter called Weld, who then owned the land in question and other land in that neighborhood, made an agreement by which the plaintiff bought and Weld sold to him that land for a stipulated sum and on definite terms, but with the statement that the land was 'subject to the usual Weld restrictions.' In fact, a large part of the land was not then subject to any restrictions. We are satisfied, however upon the facts reported by the master, that this language was intended as a stipulation that the conveyance to the plaintiff was to be made subject to the restrictions stated. As to this, the defendants contend that the words used 'the usual Weld restrictions,' do not describe any particular restrictions which can now be fixed and determined by the court; that it is impossible to say that both parties had any definite restrictions or any one scheme of restrictions in their minds; that this question was still to be agreed upon between them; that accordingly their minds never met upon this material part of their bargain; and so that it cannot be said that there ever was concluded between them any final and definite agreement.
The plaintiff, after receiving from Balch the letter of October 29, 1906, which contains the memorandum upon which he now mainly relies, wrote at once to Balch, asking for a copy of 'the usual Weld restrictions,' of which Balch had said, 'I will be glad to send you a copy if you care to see them.' Balch thereupon sent to the plaintiff a copy of an agreement between Weld and one Potter, to whom Weld had conveyed land in the vicinity of the land in question. This agreement contained a statement of certain restrictions, hereinafter called the Potter restrictions, and a covenant on the part of Potter to hold her land subject thereto. The plaintiff accepted these as 'the usual Weld restrictions' named in the original memorandum. It is plain that if it had been Weld who had sent this statement of the Potter restrictions to the plaintiff, it would have fixed definitely the contemplated restrictions, and upon their acceptance a final agreement would have been completed. But this copy was sent by Balch to the plaintifff without was sent by Balch to the plaintiff without any express authority from him; and it is contended by the defendants that he is not bound by it.
The master has found that Weld is bound by this act of Balch, for reasons which are stated in his report. We are of opinion that this finding must be sustained.
There is no dispute that in the beginning of this matter Balch was acting as the agent of Weld, with Weld's knowledge and consent. The letter of October 29th was sent to the plaintiff through Weld himself, who read the letter and acquiesced in it, and adopted it as binding upon himself. It was still, however, Balch's letter, though binding upon Weld. And this letter contained an express promise by Balch, that he, Balch, would send to the plaintiff a copy of 'the usual Weld restrictions' if the plaintiff so desired. This was an important part of Balch's letter by which Weld consented to be bound. The plaintiff, accepting this letter as written by Weld's authority, had a right to believe that Balch was authorized by Weld to make this promise, as indeed was the case; and this would include, as to the plaintiff, authority to keep the promise. The copy of the restrictions was not to be sent by Weld personally, or under some subsequent authority to be given or withheld as Weld might choose; it was to be sent by Balch, under authority from Weld then given by Weld's very act in assenting to Balch's promise and allowing himself to become bound thereby.
Accordingly the words 'the usual Weld restrictions' in the original memorandum have been fixed and made certain through the subsequent adoption by the parties off the Potter restrictions as the ones intended by the words originally used. We do not understand it to be now denied that in every other respect a complete agreement had been made. Accordingly we are of opinion that it appears that a final and complete agreement had been reached between the plaintiff and Weld, and that the first ground off defense set up fails the defendants. This view is confirmed by the findings of the master that there was no dispute between the parties as to these restrictions, but that the disagreement was due in the first instance to certain other claims made by Weld.
2. It is a different question whether there was any memorandum of this agreement sufficient to satisfy the provisions of the statute of frauds.
The memorandum of course must state upon its face or by means of other documents to which reference may be had all of the essential terms of the agreement. Whelan v Sullivan, 102 Mass. 204; Doherty v. Hill, 144 Mass. 465, 468, 11 N.E. 581; White v. Bigelow, 154 Mass. 593, 595, 28 N.E. 904; Bogigian v. Booklovers' Library, 193 Mass. 444, 79 N.E. 769. Looking at this memorandum by itself accordingly, the first question is whether any, and, if any, what, meaning can be given to the words 'the usual Weld restrictions.' Parol testimony is competent both of the sitution of the parties and of what restrictions, if any, had previously been put by Weld upon other land of his forming a part of the same tract of land or situated in its neighborhood, and also to determine whether any and what definite scheme of restrictions had been formed or framed by Weld, so as in either event to be fairly included within the words used. Such evidence may be received for the purpose of determining the exact subject-matter which is spoken of, of applying the language to that subject-matter, and thus of ascertaining precisely what was in the minds of the parties and so construing correctly the language they used. Putnam v. Bond, 100 Mass. 58, 1 Am. Rep. 82; Swett v. Shumway, 102 Mass. 365, 3 Am. Rep. 471; New England Dressed Meat & Wool Co. v. Standard Worsted Co., 165 Mass. 328, 43 N.E. 112, 52 Am. St. Rep. 516; Bufffington v. McNally, 192 Mass. 198, 78 N.E. 309; De Friest v. Bradley, 192 Mass. 346, 352, 78 N.E. 467; Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co., 199 Mass. 22, 84 N.E. 1020. Such testimony was received by the master; and it now appears that Weld had conveyed several parcels of his land near to the land in question, and had imposed upon the lands thus conveyed certain restrictions which, while they had many features in common, were not uniform; and it has not been found that any of them could have been accurately described as 'the usual Weld restrictions.' But the Potter restrictions, and only the Potter restrictions, did apply to a part of the land in question. It was only they that had been adopted or applied by Weld to any part of this land. And it is somewhat significant that these restrictions were not created by the deed from...
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