Ely v. McKay , 94 Mass. 323 ( 1866 )

Hoar, J.

The conclusion to which the court have come upon one branch of the case renders it unnecessary to form or express an opinion upon the other points in it which have been so elab orately discussed. The plaintiffs’ bill is based upon the agree ment for the sale of the patent right by Blake to Stevens dated May 9, 1859, (Exhibit A) as modified by the written instrument (Exhibit B) dated June 10, 1859. It contains no aver ment of performance or of readiness to perform the plaintiffs part of the original contract, and throughout insists upon the instrument of June 10, 1859, as valid and obligatory between the parties to it, according to its terms, and as controlling and determining their rights.

By the clear preponderance of the evidence it seems to us that the latter instrument was never executed or intended by the parties as a complete and binding agreement, and that it did not contain a statement of all the material provisions which were designed by them to be included in their contract.

By the original agreement the assignment of the patent was to be made upon the payment of $50,000 in cash. The plaintiffs allege that this was not the true agreement, but that it was intended that the payment should be made by instalments. If this were so, it affords no answer to the defendants’ position in relation to the paper of June 10th. By the terms of the latter the provision for a payment by instalments was made; but it stated that these were to be by notes of Stevens, without any stipulation for security for their payment.

The defendants have undertaken to prove, and have proved to our satisfaction, that this was not the true contract; that Blake never agreed to take the notes of Stevens without security; and that the paper was never executed and delivered as the contract of the parties, but was given to Stevens to enable him to show other persons with whom he was dealing that the time for payment had been extended. This appears by the express and positive testimony of Blake himself; by the testimony of Vittum, a witness obviously in the interest of the plaintiffs; by that of Holmes; and is confirmed by the statement of Myers, whose testimony, considering his deafness,, and the contradiction between him and Ely, is not perhaps of considerable importance. But the testimony is confirmed by two facts which are entitled to great weight. The first is, that it is highly improbable that the notes of Stevens, a man of no pecuniary responsibility, would have been taken without security for so large a sum; and the second, that Stevens, one of the parties to the transaction, was examined as a witness, and not only does not deny the facts to which the others testify, but is not even interrogated upon the subject.

Whether, therefore, the bill be regarded as a bill for the specific performance of a contract, or to enforce an implied trust against a fraudulent purchaser with notice of the plaintiffs’ rights, the defence is equally maintained.

As the written instrument of June 10, 1859, was never executed or intended by the parties as a complete and binding agreement between them, and did not contain a statement of all the material provisions which were designed by them to be included in their contract, it needs no citation of authorities to support the conclusion that a court of equity cannot properly lend its aid to enforce it. And the plaintiffs, having constantly set up and by their bill attempted to enforce that instrument, as constituting in connection with the paper marked “ Exhibit A” and dated May 9, 1859, the true and perfect contract between the parties, and never having been ready or having offered to perform the contract contained in <( Exhibit A,” cannot, after such a lapse of time, and after important changes in the condition of the parties in interest, be permitted to fall back upon the original contract, and obtain the aid of a court of equity to receive the benefit of it. They have in effect renounced and abandoned it.

The general offer in the amended bill to do and perform whatever the court shall order, is not sufficient to maintain the plaintiffs’ case, when it appears that they never offered to perform, or were ready or able or intended to perform, the true contract between the parties, but on the contrary have continually insisted upon what was not the real agreement.

Bill dismissed with costs.