Practice, Civil, Exceptions. Contract, What constitutes. Corporation, Officers and agents. Evidence, Extrinsic affecting writings.
A case was heard by a judge without a jury. At the close of the evidence the plaintiff made certain requests for rulings. The judge, after taking the case under advisement, filed a finding for the defendant and a memorandum of findings. The following day the plaintiff's counsel wrote to the judge a letter in which he stated that the plaintiff asked that "his rights be reserved in the matter of exceptions to the requests, findings and rulings refused." The judge acknowledged the receipt of the letter and stated that he would notify the clerk. No notice of the alleging of the exceptions was given to the defendant until he filed a bill of exceptions fifteen days after the judge's findings. Held, that the exceptions were alleged and saved properly.
In an action of contract for a commission for the sale of a certain "razor proposition," the declaration was based upon an agreement in a letter signed by the defendant personally. Evidence was introduced at the trial from which the judge properly found that the plaintiff and a corporation of which the defendant was an officer made an oral agreement regarding a commission to be paid to the plaintiff, of which the letter formed a part, and that the plaintiff knew that the defendant was acting for the corporation in the matter. Held, that the evidence tending to show such facts was admissible and that on the facts so found the defendant was not liable.
BRALEY, J.
The plaintiff's exceptions were duly saved and are properly before us. R.L.c. 173, § 106. St. 1906, c. 342, § 3. St. 1911, c. 212. Richards v. Appley, 187 Mass. 521. Graves v. Hicks, 194 Mass. 524.
It is manifest, however, that the action cannot be maintained unless the letter declared on is the personal contract of the defendant. The evidence abundantly showed, and the judge has found, that it constitutes part of an oral contract between the plaintiff and the corporation of which the defendant was treasurer. A contract not required by law to be in writing may be partly oral and partly written, and where the parties have not put the entire agreement in writing, evidence that the portion in writing does not constitute the completed contract, or to show what the contract really was, is always admissible. Stewart v. Thayer, 170 Mass. 560, 562. Commonwealth v. National Contracting Co. 201 Mass. 248. Potter v. Hopkins, 25 Wend. 417. Marsh v. Dodge, 66 N.Y. 533. Hussey v. Horne-Payne, 4 App. Cas. 311. The plaintiff testified, that he was ignorant of the defendant's official position, but the finding of the judge upon all the evidence, that, at the inception of the agreement, the plaintiff understood the defendant was acting for the company, is conclusive. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. If the closing language of the letter received by the plaintiff after he had entered upon his employment, "it is understood that this applies only to the tools plant etc. we supply to the proposed English Co and not to any manufactured goods we may supply until the English factory is in operating order," is read in connection with the finding, it is apparent, that the defendant was not engaged individually in manufacturing safety razors of the brand which were to be placed upon a foreign market through the efforts of the plaintiff. It also is to be presumed under the finding, that he must have known the goods to be furnished until the anticipated sale of the foreign patent had been accomplished, were to be supplied by the company. The parties evidently never reduced their entire agreement to writing, and while it cannot be varied, the actual contract may be ascertained from all the circumstances. DeFriest v. Bradley, 192 Mass. 346. The letter, therefore, cannot be disconnected and treated as an independent undertaking, and the promise of compensation if the plaintiff succeeded in negotiating a sale, is the promise of the principal with whom the plaintiff knowingly dealt. The conclusion of the judge that the defendant never became personally obligated having been warranted, the requests in so far as they were not given, are immaterial. Goodenough v. Thayer, 132 Mass. 152. Steamship Bulgarian Co. v. Merchants' Despatch Transportation Co. 135 Mass. 421.
To avoid any misconception we add, that although the alleged contract was made abroad, no proof of the foreign law having been introduced, the decision is in accordance with the provisions of our own law. Callender, McAuslan Troup Co. v. Flint, 187 Mass. 104.
Exceptions overruled.