Contract, Parties. Corporation. A corporation cannot be sued on a contract made for its benefit by its projectors before its incorporation. But semble, that a contract so made might amount to an offer addressed to the new company when it came into being and then could be accepted by the corporation, or that the corporation by accepting a conveyance of property in accordance with and in contemplation of the terms of a contract made by its projectors might be found to have made a new contract upon those terms.
HOLMES, C.J.
The document declared on discloses no signature and does not indicate that a signature by any one other than the plaintiff was contemplated. We assume however that at its date it was at least a parol offer on the plaintiff's part. We assume further that at that time the defendant corporation had not been created. This is stated very candidly by the plaintiff and the contrary does not appear from the count. Under such circumstances, if the alleged contract was made at its date the defendant could not be a party to it. Abbott v. Hapgood, 150 Mass. 248, 252. Penn Match Co. v. Hapgood, 141 Mass. 145.
Two possible modes occur to us in which the defendant could be made liable either on the document or according to its terms. It may be that, construed with reference to the facts, the document was an alternative offer, both to Dean and Shibley to whom it was delivered, and also to the corporation contemplated by it as possibly to be formed. If the words "It will sell and convey to such new company" be taken to have addressed the new company when it came into being and if the company then accepted the offer, there is no trouble in holding the latter to the stipulations in the plaintiff's favor. People's Ferry Co. v. Balch, 8 Gray, 303, 311. On the other hand, if the defendant was not privy to the offer it may have contracted later according to its terms. There are indications that the defendant was not privy to the offer. The consideration mentioned, although partly if not wholly formal, moves from Dean and Shibley only, and this fact tends to restrict the offer to them as the only parties who could enforce the promise. But if this be so, the defendant, although a stranger to the document, still might have accepted the conveyance of the property mentioned with knowledge of the terms set out in that document and upon an express or implied undertaking to perform them in consideration of the conveyance. The trouble with the declaration is that it does not allege either of the cases which it suggests as possible. Neither one of them could be made out from the allegations except by drawing conclusions of fact. Not even all the premises for such conclusions are stated, and of course in pleading we do not want the premises, which are mere evidence, but the constituent facts that themselves make a contract. As it is not unlikely that the plaintiff may have a case we shall leave it open for it to apply to the Superior Court for leave to amend.
Judgment affirmed.