Mattoon v. Barnes

Morton, J. In considering this case we must assume that all the facts which the plaintiff offered to prove are true. It appears that the plaintiff and James Barnes and Willis Phelps had been partners. After the partnership was dissolved and its affairs partially adjusted, the estate of Messer had an unsettled claim against the firm, and the plaintiff had a private claim against the estate of Messer. The three partners had some conversation about the settlement of this claim, but before any agreement on the subject was made Phelps was obliged to go West, and before going he orally authorized Barnes and the plaintiff to make for him and in his behalf, and for themselves any arrangement they should think best regarding the matter. Before leaving, Phelps signed a letter to the plaintiff in which he says, “ Any arrangement you and Gen. Barnes make about the matter we were talking about will be satisfactory to me.” Soon after Phelps left, Barnes and the plaintiff agreed that the plaintiff should settle the Messer claim, that he should be paid therefor out of the assets of the firm $1500, and that, if the [466] assets should be insufficient for that purpose, the said Barnes and Phelps should pay the plaintiff $1000 out of their own moneys, and thereupon executed the paper dated November 25, 1867. This agreement was signed by Barnes and Mattoon, but was never signed by Phelps, and the executors of Barnes now contend that it cannot be enforced against his estate because it was not signed by Phelps. The plaintiff has performed his part of the agreement, his claim is just and equitable, the objection to it is purely technical, and ought not to prevail unless we find in the established rules of law insuperable difficulties in the way of the plaintiff’s right to recover. In our opinion there are no such difficulties. The case does not turn upon the question whether Phelps is bound by the written agreement signed by Barnes and Mattoon. He does not contest the suit, but admits that by his contract with the plaintiff he is liable according to the terms set out in the agreement. If it be assumed that Phelps is not bound by the agreement itself, the question is whether that fact discharges and releases Barnes from his promises contained therein. There is a class of cases in which it has been held that where an instrument has been executed only by a part of the parties between whom it purports to be made, it is not binding upon those who have executed it. Bean v. Parker, 17 Mass. 591. Wood v. Washburn, 2 Pick. 24. Howe v. Peabody, 2 Gray, 556. Russell v. Annable, 109 Mass. 72. Most, if not all, of the cases of this class, are cases where the parties executing the instrument would have a remedy, by way of indemnity or contribution, against the other parties named, which remedy is lost by the failure of such other parties to execute the instrument. The reasons for holding the instrument void are that it was intended that all the parties should execute it, that each executes it upon the implied condition that it is to be executed by the others, and therefore that until executed by all it is inchoate and incomplete, and never takes effect as a valid contract. Oh the other hand, where these reasons do not apply, it is held that a party who signs and delivers an instrument is bound by the obligations he therein assumes, although it is not executed by [467] all the parties named in it. Cutter v. Whittemore, 10 Mass. 442. Adams v. Bean, 12 Mass. 137. Warring v. Williams, 8 Pick. 322. Herrick v. Johnson, 11 Met. 26. Yale v. Wheelock, 109 Mass. 502. In the case at bar, the estate of Barnes does not lose any right or remedy against Phelps by reason of the fact that he did not sign the agreement. He admits that he is jointly liable for the amount named in it, and the estate of Barnes has the same remedy for a contribution against him as if he had signed the agreement in form. Upon this point the case of Herrick v. Johnson goes farther than the case at bar. In the case at bar, it also appears that Barnes executed and delivered the agreement with a full knowledge of all the facts. Both parties knew that Phelps was absent; there was no condition, express or implied, that Phelps was to sign it; neither party intended or understood that it should be deemed inchoate or incomplete; but Barnes delivered it in its present form “ as and for a binding contract between the parties.” We are of opinion that, under the circumstances of this case, Barnes was bound by his execution and delivery of this contract, and that the learned judge who presided at the trial erred in directing a verdict for the defendant. Exceptions sustained.