Penn Match Co. v. Hapgood

• Decision Date: 25 February 1886
• Citation: Penn Match Co. v. Hapgood, 141 Mass. 145, 7 N. E. 22 (Mass. 1886)
• Parties: PENN MATCH CO. v. HAPGOOD and another.
• Court: Supreme Judicial Court of Massachusetts

141 Mass. 145

7 N.E. 22

PENN MATCH CO. v. HAPGOOD and another.

Supreme Judicial Court of Massachusetts, Worcester.

February 25, 1886

The agreement referred to was as follows:

"ATHOL MASS., March 1, 1882.

"We the undersigned, agree to furnish the Penn Match Co., Limited, of Philadelphia, Pa., one setting and one rolling-off machine, at prices named, ($200, $100,) cash, f.o.b., on or before April 1, 1882.

[Signed]"HAPGOOD & SMITH."

The second count of the declaration was upon an agreement under seal, to which was annexed the remaining allegations, being like those in the first count.The agreement was as follows:

"ATHOL, MASSACHUSETTS, March 1, 1882.

"We hereby agree to furnish the Penn Match Co., Limited, of Philadelphia, Penna., for one year from date, three hundred (300) gross of the best quality match splints per day, or in such quantities as they may order, (provided in car-load lots,) with cases included, at fourteen (14) cents for 4 in. and 5 in. round, and fifteen (15) cents for 5 in. square, sticks, free on board.

"In witness whereof, we have hereunto set our hand and seal this first day of March, 1882.

[Signed]"HAPGOOD & SMITH."[ L.S.]

This agreement was under seal and witnessed.

The defendants demurred to both counts of the plaintiff's declaration, assigning causes of demurrer as follows:

"First.Said counts do not set forth any cause of action substantially according to the statutes relating to pleading; second, the said counts do not show that the plaintiff existed at the time of the making of said alleged contracts, or at the time they were to be performed, and do not show that the plaintiff was a party to said contracts; third, the said counts do not show that the said Abbott, Kee, and Kempton had any authority from the plaintiff to make said contract, or to stipulate for the performance of the same on the part of the plaintiff; fourth, said counts do not show that the plaintiff has ever ordered any of the goods and merchandise named in said contracts, or ever offered or been ready to perform its part of the same; fifth, the said counts show that there were no sufficient parties to said alleged contracts to render them binding in law; sixth, the said counts show that said contracts were wholly without mutuality, and that they are void in law."

The superior court sustained the demurrer, ordered judgment for defendants, and the plaintiff appealed.

COUNSEL

W.S.B. Hopkins, for plaintiff.

J. Mason and F.P. Goulding, for defendants.

OPINION

W. ALLEN, J.

The plaintiff was not in existence when the writings were made and cannot maintain the action unless it became a party to the contracts after its incorporation.There is no ground for the contention of the plaintiff that the declaration shows the existence of the corporation, though unorganized, sufficient to be a party to a contract, as in Vermont Cent. R.R. v. Clayes,21 Vt. 30.All that is alleged is the verbal conditional agreement of certain individuals to form a corporation under general laws.The power of a corporation to make contracts can be exercised in accepting and adopting proposed contracts, made in its name and behalf, before its incorporation.Such a contract must derive its validity from the meeting of minds when both parties are in existence; until then, it can be nothing more than an offer by one party.The writings, as between the plaintiff and the defendants, show no more than proposals by the defendants, revocable at any time before acceptance by the plaintiff after its incorporation.The fact that one is under seal is immaterial in this respect.The only consideration shown for the defendant's promises is the acceptance of them by the...