Day v. Jones ( 1889 )

Field, J.

The composition agreement under seal which was signed by the plaintiff never took effect, because by its terms it was “ not to bé binding ” upon those who signed it “ unless all of the known creditors of said George W. Jones whose individual debt exceeds the sum of twenty dollars shall sign this agreement.” The exceptions state that Jones did not “secure the signatures of all his known creditors whose individual debt exceeded the sum of twenty dollars,” etc.

It is contended that it should be implied from the facts, however, that the plaintiff and George W. Jones agreed with each other that the plaintiff should not sue Jones on the note before the “ tenth day of June next ” after the date of the agreement, or for a reasonable time after the plaintiff signed the agreement, because it must have been contemplated that Jones should have some time to solicit the signatures of those of his creditors whose signatures were necessary to make the agreement binding. See Agricultural Bank v. Bishop, 6 Gray, 317.

There is no evidence of any express oral agreement to this effect, and, whatever may have been the expectation of the parties, we think that no contract of this kind can be inferred. The reasonable inference is, that it was understood by the parties that if the written agreement never became binding it was to be treated as if it had never been signed by the plaintiff, and that if it became binding the rights of the parties should be determined by it. Whether evidence of an express oral contract of the kind set up by the defendant, made contemporaneously with the signing of the written agreement, could be received, or whether such evidence must be regarded as tending to add to or vary the terms of the written agreement, need not be determined. There is no evidence that the parties did not incorporate into the written agreement everything agreed upon.

Exceptions overruled.