Richardson v. Boston Chemical Laboratory

Dewey, J. The first inquiry that arises upon this report is as to the terms of the contract entered into by the parties, on the 3d of June 1840; the plaintiff insisting that it was an absolute and unqualified agreement, by the defendants, to accept certain promissory notes, for the sum of $1661-35, in full of then- judgment, subject to no other condition, than that the execution, which issued on such judgment, might be used for the limited purpose of enforcing payment of the sum secured by these notes. To sustain this position, the plaintiff relies upon the vote of the defendants authorizing then- directors to adjust the demand against the plaintiff, at their discretion, and the vote of the directors, under that authority. This vote, the plaintiff insists, is to be taken as the evidence of the terms of the contract between these parties. On the other hand, the defendants contend that the only contract ever entered into between the parties was that contained in the written instrument signed by their treasurer. If the position of these parties had been reversed, the plaintiff claiming under the written contract, signed by the treasurer, and the defendants insisting that they were bound only by the vote of the directors, and alleging a want of authority in the treasurer to execute a contract in the terms in which it was made, the question would perhaps have presented more difficulty. But, as the question now presents itself, the plaintiff would repudiate the written contract which he himself received from the treasurer, as the evidence of the stipulation between the parties, as to this matter. It seems to us, however, that although the vote of June 3d 1840 is to be looked [51] to as the source of authority for the treasurer, yet that,, under that vote, if the treasurer could close a more favorable arrangement, and one giving better security to the corporation, it was competent for the directors, or the company, to ratify such contract, so entered into between the treasurer and the plaintiff, and thus give it full force and effect. The vote of the directors, of June 3d 1840, is to be taken only as a proposition, not binding upon the party making it, until accepted or acted upon by the other party. The contract is complete only when the minds of both parties meet, and it is their agreement, thus assented to, which binds the parties. The plaintiff was willing to deliver over the notes upon the terms stated in the contract executed by the treasurer. The defendants assented to and adopted that contract. It then became the expositor of the arrangement made between the parties, and their respective obligations are to be determined by the terms of this instrument. It is conceded that this agreement, in the terms on which it was made with the treasurer, was not performed on the part of the plaintiff; the notes not being paid as they became due and payable. The condition of the promise contained in the writing executed by the treasurer — which was a condition precedent, upon which the execution against the plaintiff was to be discharged — was, therefore, not performed; and, by reason of this failure on the part of the plaintiff, it was competent for the defendants to refuse to carry into effect the further stipulation, by which the plaintiff would have been discharged from the execution on which he stood committed at the time of suing out his writ of audita querela. This view of the case is decisive of the present action, and requires judgment to be rendered in favor of the defendants. Another ground of defence was also relied on, which would, as it seems to us, lead to the like result. Supposing the proper construction of the contract between the parties to be such, that upon the payment of $1665-35, the execution was to be discharged, and that the time of payment was not limited strictly to the precise days on which the notes fell due; [52] yet it. was the duty of the plaintiff to make such payment, before he could claim the benefit of it, or demand a discharge from the execution. No actual payment was ever made of this sum ,• but the plaintiff insists that a tender was made of that amount, which was refused by the defendants. It is denied, by the defendants, that any legal tender was made. It is said that, in order to be such, it must be' an unconditional offer of the money; and if accompanied by any qualifying words, or with a demand of any thing to be done by the party to whom the tender is made, beyond the mere receipt of the money tendered, it will avoid the tender. Such seems to be the rule established by numerous authorities, in this Commonwealth and elsewhere. Thayer v. Brackett, 12 Mass. 450 Loring v. Cooke, 3 Pick. 48. Wood v. Hitchcock, 20 Wend. 47. Brooklyn Bank v. De Grauw, 23 Wend. 342. Griffith v. Hodges, 1 Car. & P. 419. Peacock v. Dickerson, 2 Car. & P. 51, note. Strong v. Harvey, 3 Bing. 304. Ryder v. Townsend, 7 Dowl. & Ryl. 119. Glasscott v. Day, 5 Esp. R. 48. Higham v. Baddely, Gow, 213. The present case shows no unconditional offer to the defendants’ treasurer of the sum to be paid; but it was accompanied with a requisition of some writing to discharge Richardson. This condition the plaintiff could not legally annex to the tender of the money, and this would clearly render that tender of no effect. As to the other tenders the court express no opinion. A verdict is to be taken for the defendants, agreeably to the stipulation of the parties.