Williams v. Pittsfield Lime & Stone Co.

• Decision Date: 03 January 1927
• Parties: WILLIAMS v. PITTSFIELD LIME & STONE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 65

154 N.E. 572

WILLIAMS

v.PITTSFIELD LIME & STONE CO.

Supreme Judicial Court of Massachusetts, Berkshire.

Jan. 3, 1927.

Exceptions from Superior Court, Berkshire County; Wm. A. Burns, Judge.

Action by James H. Williams against the Pittsfield Lime & Stone Company. On exceptions of both parties. Exceptions overruled.F. M. Myers, of Pittsfield (F. H. Cande, of Pittsfield, on the brief), for plaintiff.

J. M. Rosenthal, of Pittsfield (J. B. Cummings, of Pittsfield, on the brief), for defendants.

RUGG, C. J.

This is an action of contract. The declarations is in two counts. In the first count it is alleged that the defendant on or about March 1, 1923, by contract agreed to employ the plaintiff as superintendent of construction work for a period of not less than one year and until said construction work was completed, beginning not later than May 1, 1923, at a monthly salary of $350; that the plaintiff has performed his part of the contract; and the defendant has neglected to perform his part thereof, whereby he owes the plaintiff $1,400. The second count is upon an account annexed, wherein the same amount is claimed as salary for the months of May, June, July and August, 1923. The defendant pleaded among other matters that the contract was not to be performed within one year after the making thereof, and was not in writing nor any note or memorandum thereof signed by the defendant.

[1] The plaintiff testified to an interview between himself and the president of the defendant on March 1, 1923, which, a few days later on March 5, 1923, was followed by a letter addessed to the plaintiff and signed by the defendant closing with the statement that the ‘foregoing will answer for a memorandum confirming our previous conversation,’ and that the plaintiff, on March 13, 1923, sent a letter accepting the terms of the defendant's letter. The body of the letter of the defendant to the plaintiff set forth in sufficient detail terms of an employment to begin on April 15, 1923, or not later than May 1, 1923, but it did not state the time during which the employment was no continue. On cross-examination and subject to his own exception, the plaintiff testified that at his interview with the president of the defendant on March 1, 1923, the two arrived at an oral agreement and that one of its terms was that the employment was to last at least one year beginning not earlier than the 1st of April, 1923.

[2][3] This evidence was competent on cross-examination of the plaintiff. It tended to prove the allegations of the first count of the declaration. It could not have been ruled as matter of law that the letter of the defendant and the reply of the plaintiff thereto constituted a complete contract in writing in view of all the evidence. It was described in the defendant's letter as a ‘memorandum.’ It is permissible to show by oral testimony that a memorandum of agreement does not contain all the stipulations made by the parties in the oral contract, and therefore is not such a memorandum as will satisfy the statute of frauds. Boardman v. Spooner, 13 Allen, 353, 358, 90 Am. Dec. 196;Dutton v. Bennett, 255 Mass. --, 152 N. E. 621;Fisher v. Andrews, 94 Md. 46, 50 A. 407;O'Donnell v. Daily News Co., 119 Minn. 378, 138 N. W. 677;Polucek v. Jachoda, 203 App. Div. 38, 196 N. Y. S. 445. It frequently has been held that an independent and collateral element of a contract may be shown by parol evidence, even though the rest of the contract is in writing. Durkin v. Cobleigh, 156 Mass. 108, 30 N. E. 474,17 L. R. A. 270, 32 Am. St. Rep. 436;Thomas v. Barnes, 156 Mass. 581, 31 N. E. 683;McCusker v. Geiger, 195 Mass. 46, 53, 80 N. E. 648;Rackemann v. Riverbank Improvement Co., 167 Mass. 1, 5, 44 N. E. 990,57 Am. St. Rep. 427;Sudhalter v. Oberstein, 244 Mass. 442, 138 N. E. 801. These principles are settled and govern the narrow class of cases to which they are applicable, notwithstanding the general rule that, when the parties have reduced their contract to writing, all previous or contemporaneous oral or written negotiations are merged in it and its terms cannot be varied, contradicted, added to, or subtracted from by oral testimony touching such negotiations. Jennings v. Puffer, 203 Mass. 534, 89 N. E. 1036;Goldenberg v. Taglino, 218 Mass. 357, 359, 105 N. E. 883;National Wholesale Grocery Co., Inc., v. Mann, 251 Mass. 238, 244, 146 N. E. 791.

[4] Since the fact that the contract by agreement of the parties was to continue in force not less than one year from a future date was grought out in the testimony of the plaintiff himself, he was bound by it. It was not a fact in dispute to be submitted to the jury. Sullivan v. Boston Elevated Railway, 224 Mass. 405, 406, 112 N. E. 1025;Will v. Boston Elevated Railway, 247 Mass. 250, 251, 142 N. E. 44. It showed that the contract actually made between the parties was not to be and could not be performed within one year from the time it was made. That element of the agreement was not in the letter of either the defendant or the plaintiff. That part of the contract was not in writing, nor was any note or memorandum of it in writing. The plaintiff therefore was barred of recovery on that contract by the statute of frauds. G. L. c. 259, § 1, cl. 5. Hill v. Hooper, 1 Gray, 131;De Montague v. Bacharach, 187 Mass. 128, 134, 72 N. E. 938. The numerous cases like Bolton v. Van Heusen, 249 Mass. 503, 506, 144 N. E. 384, and Rowland v. Hackel, 243 Mass. 160, 162, 137 N. E. 265, and authorities collected in each decision, where contracts which may be performed within a year although they may also extend beyond that period have been held not within this clause of the statute of frauds, are inapplicable to the facts of the present case.

[5] There was evidence which in its asspects most favorable to the plaintiff would have warranted a finding that the plaintiff reported at the place and within the time fixed by the agreement ready and willing to perform his service of employment, but was told by an agent of the defendant that there was no work for him to do, and that he continued to hold himself in readiness to work under the contract, and that he received no pay from the defendant, and that the only work actually done by him was to make a single trip from Pittsfield to Springfield; that a relative of the plaintiff in June or July, 1923, asked the president of the defendant about the plaintiff's salary and was told ‘something to the effect that he would attend to it right away.’ There was other evidence which need not be recited. At the close of the plaintiff's case and before the defendant rested, the trial judge on motion of the defendant directed the plaintiff to elect on which of the two counts in the declaration he relied, and refused to give any reasons therefor, for, all subject to the plaintiff's exception.

It was not stated in the declaration whether both counts were for the same or for different causes of action. If both counts were for the same cause of action, manifestly the circumstances were such that the plaintiff was not injured by being...