Watson v. Slocomb , 225 Mass. 232 ( 1916 )

Pierce, J.

The plaintiff brought an action in contract upon an account annexed against the defendant, and alleged therein that the defendant owed him $1,000 and interest thereon for services rendered August 26, 1908, in placing a mortgage of $9,000 on the real estate of the United Brush Company.

It appeared in evidence at the trial that the defendant was the president, the treasurer and a stockholder of the United Brush Company and that the plaintiff was the treasurer and a stockholder of the E. IC. Watson Company; that the United Brush Company owed the E. K. Watson Company a sum of money it was unable to pay; that the plaintiff “proposed” that he secure a mortgage of $9,000 on the real estate of the United Brush Company and that he be given as his commission ten shares of the preferred capital stock of the United Brush Company; that a mortgage was executed June 22, 1908, and that the debt to the E. 1C. Watson Company was paid from the proceeds of the mortgage. The plaintiff testified that in all the transactions that he had with the defendant he was acting as agent of the E. IC. Watson Company except when he procured the mortgage. The defendant testified that in all the transactions with the plaintiff he acted as agent for the United Brush Company, never acting for himself individually.

The plaintiff further testified that on August 26, 1908, he called at the office of the United Brush Company and demanded ten shares of the preferred stock of that company from the defendant and one Sylvester, and produced a certain writing which he said was a contract that he made that day with the defendant and Sylvester. He then was asked if he based his claim solely upon this writing as a contract, and he answered in the affirmative. Whereupon the defendant objected to the admission of this writing as a contract under the pleadings, and the judge ruled it was not admissible.

The plaintiff then moved to strike out all of the declaration filed by him in this cause, and to substitute therefor the following: “And the plaintiff says that the defendant owes him one thousand dollars by reason and by virtue of a certain contract signed by him which contract is annexed hereto and made a part hereof, together with interest. . . .

Pawtucket, R. I. Aug. 26, 1908.

Mr. E. K. Watson,

Dear Sir:

For services rendered by you, Mr. Sylvester and myself agreed to issue to you 10 shares of the preferred stock of the above company. Circumstances as explained to you to-day have debarred us from doing this up to this time, and should it be impossible to do the same we will endeavor to satisfy you for those services in some other way.

Samuel Slocumb,

A. C. Sylvester.”

The motion was allowed, and thereupon the defendant asked the judge to rule that the writing did not constitute a contract. The judge so ruled and ordered a verdict for the defendant, and the plaintiff excepted.

Assuming that the testimony given at the trial upon the account annexed is to be treated as given without exception in support of the substituted declaration, and that the motion of the defendant, in effect to direct a verdict for the defendant, was made at the close of all the evidence, the ruling of the presiding judge was clearly right. There is no allegation nor proof that the services rendered by the plaintiff in securing the mortgage were undertaken and performed in reliance upon an express promise of the defendant that he individually would give to the plaintiff as commission ten shares of the preferred capital stock of the corporation of which he was treasurer, or would guarantee that the corporation should do so.

In accordance with the agreement of the parties “the verdict for the defendant shall stand.”

So ordered.