Stearns v. Foote , 37 Mass. 432 ( 1838 )

Wilde J.

delivered the opinion of the Court. The defendant is charged with the breach of a contract in writing, whereby he undertook and promised the plaintiffs, among other things, to sell and deliver to them all the wool he should cut annually for five years from and after the first day of June, 1833 ; also all the wool which should be cut annually from the flocks of his two sons, Daniel Foote and Asaph D. Foote, for the same time. By the cont'act offered in evidence on the trial, it appears that it was signed not only by the plaintiffs and defendant, but also by the defendant’s two sons above named. The defendant objected to the introduction of this contract, as being variant from that set out in the declaration ; but the objection was overruled, and we think the ruling was clearly right.

On the face of the contract it is declared to have been made by the defendant of the one part, and the plaintiffs of the other part. This clause conclusively shows that they alone were the contracting parties, and controls the subsequent language of some parts of the contract, by which it might otherwise be inferred, perhaps, that the defendant and his two sons were joint contractors. But if that were the case as to some parts of the contract, still this action might be maintained, for the promise set out in the declaration is expressly made by the defendant alone. If the signing of the contract by the defendant’s two sons has any legal effect, it would only be evidence of a parol promise of the sons to their father to cooperate with him for the purpose of enabling him to fulfil his contract with the plaintiffs. But however this may be, it is very clear that the promise on which this action is founded, is, in express terms, the sole promise of the defendant.

The other exceptions to the decisions of the presiding judge at the trial, appear to us to be equally unfounded. It has been argued that as the defendant could not make a valid sale of property belonging to his sons, his agreement or promise to make such a sale at a future time must consequently be a void promise. But this consequence does not follow, for he might have procured a title, and if he has failed so to do, he is responsible in damages. An agreement that a stranger shall convey property or perform services for another, is a valid contract, although the promisor may perhaps be unable to fulfil it. [ Vide Ante, 105.]

It was also argued, that as Asaph Foote owned his flock in common with James Foote junior, the plaintiffs are entitled to recover under the contract only a moiety of the wool. But it was proved that James had let his share of the flock to Asaph during the years 1834, 1835 and 1836, and that the whole wool during those years was sheared by Asaph and was his property. It was therefore clearly included in the contract.

Judgment on the verdict.