Crocker v. Foley , 95 Mass. 376 ( 1866 )

Bigelow, C. J.

1. The objection that the letter was inadmissible as evidence in proof of an agreement by the defendant is untenable. By U. S. St. 1864, c. 173, §§ 151, 163, which was in force when the letter was written, it is required only that contracts or agreements shall bear a stamp such as is therein designated. By this is intended contracts which are completed by the assent of the parties thereto. The letter in question is not a contract or agreement of itself. It was only a proposition or offer. No contract or agreement was entered into between the parties until the plaintiff had signified his assent thereto to the defendant’s agent, and had renewed the note in compliance with the defendant’s offer. The contract of guaranty took effect from this verbal acceptance of the offer in the letter, and the acts of the plaintiff in pursuance thereof. The letter was only one link in the chain of evidence tending to prove the contract. No stamp was required to render it admissible for such purpose. See cases cited in 3 Parsons on Con. 295. But if a stamp was required, the omission to affix it would not render the letter invalid or inadmissible as evidence of a contract. There was nothing to show that the omission was intentional or fraudulent. Tobey v. Chipman, ante, 123.

2. There was no substantial variance between the allegations in the declaration and the evidence at the trial. An accurate copy of the letter was annexed to the declaration, and the averment is that the plaintiff in compliance with the promise therein contained did the acts which constituted a good consideration for the promise, and rendered it obligatory upon the defendant.

3. We cannot say that the finding of the court on the evidence was erroneous. We might have come to a different conclusion on the facts ; but we see no ground for holding that it was erroneous in point of law. Exceptions overruled.