Reed v. Ashburnham Railroad Co.

• Decision Date: 02 March 1876
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John H. Reed & another v. Ashburnham Railroad Company

120 Mass. 43

John H. Reed & another v. Ashburnham Railroad Company

Supreme Court of Massachusetts

March 2, 1876

Argued November 15, 1875. [Syllabus Material]

Suffolk. Contract upon an account annexed for railroad materials alleged to have been sold by the plaintiffs to the defendant corporation, and used in the construction of the defendant's railroad. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions in substance as follows:

It appeared that the plaintiffs were agents of the Bay State Iron Company, and in that capacity, on September 4, 1872 concluded with George C. Winchester, as president of the defendant corporation, the negotiations for a sale of two hundred and forty tons of railroad iron to the defendant corporation amounting to about $ 20,000.

Winchester was one of the original corporators of the defendant corporation, then recently created by the St. of 1871, c 251. The existence of the corporation and the connection of Winchester as president were admitted; and the weights, quantities and prices of the plaintiffs' bill were not in dispute.

It also appeared that one Lynch had undertaken to build the road by contract made with the corporation by Winchester, and was then engaged in building the road; and that by his contract he was to furnish the iron and the materials named in the plaintiffs' bill in this suit. The plaintiffs, acting for the Bay State Iron Company, had refused to sell to Lynch, his credit being insufficient; and on the back of a broker's note of sale of the two hundred and forty tons of railroad iron, in which Lynch's name appeared to have been interlined, the following indorsement was made and signed by Winchester:

"Boston, Sept. 4, 1872. I, George C. Winchester, president of the Ashburnham Railroad Company, hereby guarantee payment of the within named iron as follows, viz., one half cash on delivery of the iron, and one half the Ashburnham Railroad Company's note, at four months from date of delivery, with interest added at 7% per cent. per annum." The iron was delivered, and the note mentioned was given and paid.

Immediately after the completion of the negotiation above named and on the same day, one of the plaintiffs testified that he called the attention of Winchester to a memorandum which he told Winchester was a memorandum of the quantities and sizes of articles wanted for the road (being the same now sued for), which had been left by one Appleton in behalf of Lynch; and also told Winchester that his firm would not sell the contractor, but would sell the railroad company, if ordered by it. To which Winchester replied, "Go ahead, send them along," or used similar language. Following this conversation, the witness testified that he procured the articles from several sources and caused the same to be forwarded, and entered the same upon the sales book of the plaintiffs to the Ashburnham Railroad Company, in the usual form of charges on book account. The original entries were exhibited and offered in evidence.

After the articles had all been forwarded, the plaintiffs wrote and mailed the following letter to Winchester, dated Boston, October 28, 1872, and signed by the plaintiffs: "Dear Sir, We inclose herewith our bill for spikes, splices and bolts furnished your road, indorsed with order for payment by your contractor, Mr. John Lynch. By sending us check in payment of same by return mail you will very much oblige, as we are sadly in want of money."

The witness testified in cross-examination that he had no copy of the indorsement of Lynch, but from his best recollection it was simply an acknowledgment of the receipt of the articles for warded as a voucher. A copy of the bill was produced in form: "Ashburnham R. R. Co. Bought of John H. Reed & Co."

The plaintiffs offered a letter from Winchester, dated Ashburnham, November 12, 1872. So much of it as referred to this subject was read in evidence and was as follows: "Regarding the bills sent by you against the Ashburnham R. R. Co., having been brought to notice of treasurer, he will present them to directors of said Co. for their consideration at the next meeting."

The plaintiffs afterwards, under date of Nov. 25, 1872, wrote and mailed the following letter to Winchester, signed by them "Dear Sir, We take the liberty of calling your attention to our bill against your road for spikes, splices, &c. Will you be kind enough to instruct your treasurer to send us a check for the amount of same. We have some amounts to pay, and are short of funds. By giving this your early attention you will very...