Contract. Evidence. Agency. Practice, Civil, Parties. In an action for alleged breach of a contract in writing to hire a certain hall from the plaintiff for Saturday nights from October 10, 1903, to June 1, 1904, inclusive, it appeared that the defendant signed the following agreement in writing: "September 25, 1903. I do hereby agree to hire Armory Hall for Saturday nights commencing October 10th, to run socials from 8 to 11.30 and conduct same in satisfactory manner according to law, etc. I hereby place a deposit of $10 to bind the bargain and agree to deposit $50 the 15th day of October. Said $50 to remain as a deposit on the hall until June 1, 1904. Price of hall to be $15 each night including the check room. Payable balance ($5) October 10th and $15 each Saturday night thereafter. If necessary, to hire an officer at my expense." The plaintiff was allowed to testify, against the objection of the defendant, that when the defendant signed the agreement the plaintiff told him orally that he would let the hall to him for the season and that the defendant stated that he wanted to take the hall for the season, and was allowed to testify further that the season for the letting of such halls lasted until the end of May. Held, that the evidence was admitted properly to explain the ambiguous terms of the contract.
An agent may sue on an agreement in writing made by him in his own name in behalf of an undisclosed principal.
If an agent suing on a contract made by him in his own name in behalf of an undisclosed principal describes himself in his writ as agent, this designation does not affect his right to recover in his own name or make admissible evidence offered by the defendant to show that the contract was that of the undisclosed principal.
An agreement to hire a hall on Saturday night of each week during a season lasting to a certain date, which has been accepted by the acts of the person authorized to furnish the use of the hall and during a part of the season has been performed by both parties, is binding on both of them for the whole of the season, and the obligation to pay for the hall is not confined to its use and occupation.
BRALEY, J.
This is an action of contract to recover under the first count damages for breach of the following written agreement signed by the defendant: "September 25, 1903. I do hereby agree to hire Armory Hall for Saturday Nights Commencing Oct. 10 to Run Socials from 8 to 11.30 Conduct same in satisfactory manner according to law etc — I hereby place a deposit of Ten ($10) Dollars to bind the bargain agree to deposit ($50) Fifty Dollars the Fifteenth day of October — Said fifty dollars to remain as a deposit on the hall until June 1st, 1903 [1904] — Price of hall to be Fifteen ($15) Dollars each night including the check room — Payable balance ($5 dollars) Oct. 10th fifteen dollars — each Saturday night thereafter. If necessary to hire an officer at my expense." And under the second count for breach of an oral agreement relating to the use of the hall on two holidays during the period covered by the first contract. In the Superior Court the presiding judge, before whom the case was tried without a jury, having found for the plaintiff, it is before us on the exceptions of the defendant, which refer solely to the first count.
Treating the contract at its inception as unilateral, upon acceptance it became binding upon both parties. Bishop v. Eaton, 161 Mass. 496. The first question raised is that no period of time being specified parol evidence that the hiring of the hall was for the season, which ended June 1, 1904, was inadmissible. The time named is an impossible date as it refers only to the past, but the whole instrument indicates that the hiring was intended to be for a definite term, and as the contract thus became of doubtful meaning the attendant circumstances may be shown to aid in its interpretation. Stoops v. Smith, 100 Mass. 63, 66. Assuming that upon the evidence the second recital of "1903" was found by the trial court to be intended by the parties for the year 1904, no definite term is fixed during which the defendant could exercise the right for which he bargained, even if the deposit was to remain in the possession of the plaintiff as security for the rental until this date. It is true that resort cannot be had to oral evidence in order to vary or contradict what the parties have expressed by their written agreement, but this rule does not include such testimony when offered by way of explanation of a latent ambiguity, and in proof of the subject matter that must have been within the contemplation of the parties, but not clearly expressed in the writing. Hebb v. Welsh, 185 Mass. 335, 336, and cases there cited. Stoops v. Smith, ubi supra. The parties must have intended that the occupation of the hall by the defendant included a definite number of Saturday evenings ending at the time named, but they failed expressly to set this forth, and no denial of the fact that the defendant availed himself of the provisions of the contract until February, 1904, was made at the trial. Under these conditions, and in aid of its construction, the testimony of the plaintiff that he stated when the contract was executed that the letting was for the season, to which the defendant assented, was competent, not as enlarging the agreement, but to identify the time which they intended to cover. Stoops v. Smith, ubi supra. From this evidence, although denied by the defendant, it could have been found that both understood the term used in the same sense, and it would follow that the plaintiff's subsequent definition of "season," that it meant a period expiring the last Saturday of the following May also was admissible. Stoops v. Smith, ubi supra. Aldrich v. Aldrich, 135 Mass. 153, 157. Hebb v. Welsh, ubi supra.
Whatever confusion there may have been in some of the earlier cases, it is settled by Colburn v. Phillips, 13 Gray, 64, in which they are reviewed, "that where a contract, not under seal, is made with an agent in his own name, for an undisclosed principal, either the agent or the principal may sue upon it," and since then in this jurisdiction this has been the law. Borrowscale v. Bosworth, 99 Mass. 378, 383. Rhoades v. Blackiston, 106 Mass. 334, 335. Terry v. Brightman, 132 Mass. 318. See Cushman v. Snow, 186 Mass. 169, 173, 174. But as either could sue on the contract if broken, the defendant's offer of proof of an undisclosed principal was rightly excluded, as this evidence was immaterial. The plaintiff having executed the contract on his part, the defendant's promise rested on a sufficient consideration. Colburn v. Phillips, ubi supra. In the writ the plaintiff described himself merely as agent, without further description, and from this designation it also is contended that the evidence should have been admitted, but this admission may be treated as a designation only, and because unnecessary his right to recover in his own name remained unimpaired. Silver v. Jordan, 136 Mass. 319. See Simonds v. Heard, 23 Pick. 120, 126; Plimpton v. Goodell, 126 Mass. 119, 120.
The first and fourth requests, "That the written contract or paper set forth in the plaintiff's declaration does not provide for a letting of the hall for any specific time, and that the defendant cannot be held liable on said writing for rent, or for use and occupation, of said hall for any period, or days, not used by the defendant," and that "Under the evidence in this action, said action cannot be maintained in the name of the plaintiff," therefore, were properly refused. The second request, which also was refused, that the contract concerned an interest in real property and was within the provisions of R.L.c. 74, § 1, cl. 4, not having been argued, must be treated as waived.
It is further suggested that the agreement itself, being incomplete, is to be considered as nothing more than an offer to hire which never became a completed contract, but the proposal having been accepted, and the consideration furnished by the plaintiff, and also having been presently executed by the defendant exercising the privilege or license conferred, this argument cannot prevail. Johnson v. Wilkinson, 139 Mass. 3.
The defendant contended that there was nothing in the instrument signed by him which bound him to pay for any time beyond the nights upon which he had used and occupied the hall; that the paper was no more than an offer, binding upon no one except so far as it had been executed, and only to that extent was an accepted offer.
After February 22, 1904, although the defendant did not use the hall, yet with his knowledge and without his dissent it was kept ready for his use on each succeeding Saturday evening until the end of the season; consequently having failed to fully perform his contract he must respond in damages to the plaintiff for the loss suffered. Johnson v. Wilkinson, ubi supra. Exceptions overruled.