Willard F. Deputy & Co. v. Hastings
| Decision Date | 12 October 1923 |
| Citation | 123 A. 33,32 Del. 345 |
| Parties | WILLARD F. DEPUTY & COMPANY, a corporation created by and existing under the laws of the State of Delaware, v. E. GUY HASTINGS, Administrator of William Ward, Joseph Ward, Thomas Ward, and Daniel B. Lecates |
| Court | Delaware Superior Court |
Superior Court for Sussex County, October Term, 1923.
Summons in covenant, No. 19, June term, 1921.
This case arose under a written and sealed instrument which began as follows:
"Agreement made this 20th day of March, A. D. 1920, among William Ward Thomas Ward, Joseph Ward and Dr. Ward, hereinafter known as parties of the first part, D. B. Lecates, hereinafter known as party of the second part, and Willard F. Deputy & Co. hereinafter known as the party of the third part."
James M. Tunnell and Daniel J. Layton for the plaintiffs.
Andrew J. Lynch, Charles W. Cullen and John M. Richardson for the defendants.
OPINION
The other facts will appear in the charge to the jury.
At the first trial, some difficulty being experienced in proving the signature of the party of the third part by a subscribing witness, it was contended that the instrument was not a sealed instrument as to the third party because of the lack of the corporate seal, the seal affixed thereto being simply a scroll seal. The court held that the corporation had power to and had adopted the scroll seal as its seal for the particular transaction. See 2 Page on Contracts (2d Ed.) §§ 1158 and 1159, and cases there cited. [1]
RODNEY, J., charging the jury:
This action is brought by the plaintiff, Willard F. Deputy & Co., against the defendant, E. Guy Hastings, administrator of William Ward, Joseph Ward, Thomas Ward and Daniel B. Lecates to recover damages, occasioned by the breach of a written and sealed contract alleged to have been entered into between the parties.
There is no dispute over the fact that a written and sealed instrument was prepared and executed by the plaintiff and by William Ward, Joseph Ward, Thomas Ward and Daniel B. Lecates.
This contract is in general for the sale of the timber on a tract of land specified in the contract by the three Ward brothers, its cutting by Lecates and its purchase by Willard Deputy & Co.
The price to be paid for the lumber by the purchaser was $ 30 per thousand feet, of which amount the sum of $ 16.50 per thousand feet was to be paid to the owners and the sum of $ 13.50 per thousand feet was to be paid to Lecates, the sawyer.
The controversy in this case arises from the fact that the name of Dr. James H. Ward was inserted in the beginning or body of the typewritten agreement prior to its signature by any of the parties, but that it was never in fact signed or executed by him.
The plaintiff contends that the contract was entire, complete and binding without the signature of Dr. Ward, and that it was so understood by the parties.
The defendants contend that the written contract was never intended by the parties to be an entire, complete and binding one until all the parties mentioned in it, including Dr. Ward, had signed and delivered it and that since Dr. Ward had never signed it the contract was not complete and, therefore, not binding upon any of the parties.
The defendants further contend that Willard F. Deputy, president of the plaintiff company, on or about May 20, 1920, expressly waived the performance of the contract by and on the part of the defendants and agreed to the abandonment of the contract.
This last contention of the defendants is denied by the plaintiff.
We say to you that when a contract is reduced to writing and a number of persons are named therein as parties, a portion of whom sign the same and a portion of whom do not affix their signatures, the question of whether or not those who have signed the contract are bound thereby is to be determined by the intention of the instrument. Chouteau v. Suydam, 21 N.Y. 179.
Where the intention of the parties who have signed the agreement plainly appears that they are not to be bound until or unless other parties also named therein have likewise signed it, the contract of such parties will not be binding.
The authorities are uniform in holding that parties signing a contract prepared for signatures of other persons along with theirs, and intended to be signed by all of the parties named in it are not bound until all have signed it and incur no obligation, if any of those who were to have signed it refuse to do so. Herndon v. Meadows, 86 W.Va. 499, 103 S.E. 404; Bean v. Parker, 17 Mass. 591; Wood v. Washburn, 2 Pick. 24; Ely v. Phillips, 89 W.Va. 580, 109 S.E. 808; Fish v. Johnson, 16 La. Ann. 29; McDaniel v. Anderson, 19 S.C. 211; Bruch v. Shafer, 235 Pa. 590, 84 A. 515, and 45 Pa.Super. 612.
It is, however, true in the absence of testimony showing that execution by all of the parties was intended or some other reason or consideration calling for joint execution, the signatures of part of those named in the instrument bind them though others named therein have not signed the same. Mattoon v. Barnes, 112 Mass. 463; Naylor v. Stene, 96 Minn. 57, 104 N.W. 685; Dillon v. Anderson, 43 N.Y. 231; Whitaker v. Richards, 134 Pa. 191, 19 A. 501, 7 L. R. A. 749, 19 Am. St. Rep. 684.
It is this fact, this presence or absence of testimony showing the intention on the part of the defendants not to be bound by their signatures unless Dr. Ward also signed the contract that constitutes one of the principal questions for you to determine.
If you should determine from the evidence that it was intended and understood by the defendants that they should not be bound by the contract unless Dr. James H. Ward also signed the same, then your verdict may be for the defendants.
If on the other hand you should determine from the evidence that...
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