Tulane University v. O'Connor

Morton, J. This is an action against the guarantors of a lease made by the plaintiff to one O’Connor of the Hotel Plaza in Boston to recover a month’s rent. O’Connor, the lessee, was a defendant, but before opening the case to the jury the plaintiff discontinued as to him, and also as to one other defendant. There was a verdict for the plaintiff, and the case is here on exceptions by the remaining defendants to certain rulings made by the court at the close of the evidence and to the refusal of the court to give certain rulings requested by them. The principal contention of the defendants is that after they had signed it, the guaranty was materially altered by placing seals against their respective signatures without their knowledge or consent. There was evidence tending to show that the fact in regard to the seals was as alleged by them and that the seals-were probably placed there by one Hamlen, a real estate agent, who had charge of the property for the plaintiff, and who died before the trial. The month and the day of the month, which were left blank in the date when the defendants signed, were filled in in his handwriting, and no objection thereto has been made by the defendants. The testimonium clause called for seals, and Hamlen may well have supposed that he was to affix them as well as to insert the month and the day of the month. It was undisputed that the defendants signed the guaranty, and that it was delivered to O’Connor after they had signed it and before O’Connor had signed the lease and that O’Connor signed the lease afterwards and before it was sent to the plaintiff. It was also undisputed that the lease and guaranty were sent by Hamlen to the plaintiff at New Orleans and that the lease was duly executed by representatives of the plaintiff on its behalf pursuant to a vote of the board of administrators of the Tulane educational fund which, it is not denied, was the proper body to act for and bind the plaintiff and that thereafterwards O’Connor entered and held under the lease. When the lease [432] and guaranty were sent to the plaintiff they were in their present condition in all respects except that the lease had not been executed on behalf of the plaintiff. The defendants asked the court to rule on this branch of the casp that, “ The putting of the seal opposite the defendant’s name without his knowledge or consent is a material alteration and voids the instrument altogether and the plaintiff cannot recover.” The court declined to rule as thus requested, but ruled as follows : “ There is no evidence that Hamlen was authorized to bind the plaintiff by a written lease, or to make any contract in writing for the occupation of the premises. If there were no seals opposite to the defendants’ signatures when they signed the guaranty, and if Hamlen or some one in his office subsequently affixed seals there without authority and then forwarded the paper to the plaintiff, and the plaintiff examined and considered it for the purpose of determining whether to execute it, and delivered it to O’Connor without knowledge of the change made by Hamlen, and if O’Connor accepted it and held under it, the liability of the defendant in this action is the same as if no seals had ever been placed upon the guaranty.” 1. We think that the ruling was right. It is not contended that there was any evidence that Hamlen was authorized to bind the plaintiff by a written lease, or to contract in writing for the occupation of the premises, or that the plaintiff had any knowledge that the seals had been affixed by him, if he did affix them, after the guaranty had been signed by the defendants. There was a good consideration for the guaranty as signed by the defendants and the addition of the seals must be regarded as the act of a stranger and therefore as not affecting the obligation created by the unsealed instrument or the right of the plaintiff to maintain an action upon it as such. See Jeffrey v. Rosenfeld, 179 Mass. 506. There is nothing to show that the plaintiff ratified Hamlen’s act in putting on the seals or that it is estopped to rely upon the guaranty as it was before the seals were affixed. The ruling that was requested that the putting on of the seals rendered the guaranty void was therefore rightly refused. 2. The defendants contend in the next place that the action cannot be maintained because the plaintiff which is a foreign [433] corporation had filed no certificate or power of attorney with the commissioner of corporations as required by R. L. c. 126, § 4, or St. 1903, c. 437, §§ 58-60. But those provisions apply to business corporations and not to literary or charitable institutions like the plaintiff. This is evident from an examination of the statutes. The act which was in force when this action was brought was St. 1903, c. 437, R. L. c. 126, having been repealed by St. 1903, c. 437, § 95. The foreign corporations referred to in St. 1903, c. 437, §§ 58, 60, which are required to file with the commissioner of corporations the power of attorney and the certificate therein provided for are such as may be organized under laws other than those of this Commonwealth for the purposes for which domestic corporations may be organized under § 7. Domestic corporations may be organized under § 7 for any lawful purpose not excluded by § 1 except buying and selling real estate and manufacturing intoxicating liquors. And § 1 applies, with some exceptions not now material, to “ corporations having a capital stock and established for the purpose of carrying on business for profit ”; in other words to business corporations. The facts that the plaintiff has caused repairs to be made on the property and, for some reason that is not disclosed, had a representative in the liquor licenses that were issued for the hotel do not constitute it a business corporation within the meaning of the statute. The case of Santa Clara Female Academy v. Sullivan, 116 Ill. 375, 384, cited by the defendants, is in the plaintiff’s favor as we read it. 3. Lastly, the defendants contend that they cannot be sued jointly and separate judgments entered against them, and that by bringing an action upon the guaranty as altered the plaintiff has ratified the alteration and cannot now maintain an action upon the guaranty as it was before altered. R. L. c. 173, § 3, expressly provides that “all . . . persons who are severally liable upon contracts in writing . . . may be joined in one action ” and that the declaration may contain one count only describing the several contracts if the same contract was made by all or different counts describing the different contracts if the same contract was not made by all. In this case the guaranty was signed by all of the defendants and provided that they should be severally and equally but not jointly liable and [434] there were different counts describing the different contracts entered into by the defendants. The case is clearly within the statute. See also Colt v. Learned, 118 Mass. 380. The alleged alteration was not discovered by the plaintiff, it is said, till after the action had been brought and answers had been filed by the defendants setting it up, and at the close of the trial the plaintiff was permitted by the judge to amend its declaration by adding counts declaring upon the guaranty as an unsealed instrument. There is no ground for the contention that the plaintiff has lost any rights by election or ratification. It could not ratify what it did not know, and the defendants did not ask that it should be required to elect whether it would rely on the counts declaring on the guaranty as a sealed or an unsealed instrument, even if it could have been compelled to do so, but stated at the close of the evidence that they had no desire to go to the jury under the ruling made by the court, and verdicts were thereupon returned against the defendants Schlegelmilch and Rudd separately and Emerson and Crowley jointly, it being in substance agreed that they had intended to become jointly liable for one third of the rent though their separate signatures were affixed to the guaranty. The result is that the exceptions must be overruled. So ordered.