be received, if the written contracts delivered appeared to contain all the engagements of the parties on the subject, or to have been intended as a complete statement or performance of the whole contract. The case at bar, however, is clearly within the cases where oral evidence of a collateral separate agreement has been received. Page v. Monks, ubi supra; Carr v. Dooley, 119 Mass. 294; McCormick v. Cheevers, 124 Mass. 262; Lindley v. Lacey, 17 C. B. (N. S.) 578; Erskine v. Adeane, L. R. 8 Ch. App. 756, 765; Morgan v. Griffith, L. R. 6 Exch. 70; Eighmie v. Taylor, 98 N. Y. 288; Chapin v. Dobson, 78 N. Y. 74. Exceptions sustained. NOTE. PAROL EVIDENCE is admissible as to a distinct and collateral agreement, and not part of the contract embodied in the writing, Parcell v. Grosser, (Pa.) 1 Atl. Rep. 909; but such evidence must relate to some matter distinct from that contained in the writing, Thompson v. Libbey, (Minn.) 26 N. W. Rep. 1. Where only part of the contract is reduced to writing, parol evidence is admissible to prove the portion which the parties have permitted to rest in parol, Hubbard v. Marshall, (Wis.) 6 N. W. Rep. 497; but it must appear from the writing itself that it does not contain the entire agreement, Hei v. Heller, (Wis.) 10 N. W. Rep. 620; Dixon v. Blondin, (Vt.) 5 Atl. Rep. 514. (143 Mass. 420) SLATER WOOLEN Co. v. LAMB. (Supreme Judicial Court of Massachusetts. Worcester. January 10, 1887.) CORPORATION-SALES OF GROCERIES BY ITS AGENT-ULTRA VIRES. A corporation may recover the value of groceries sold to the defendant through an agent of the corporation, the principal being undisclosed, although the corporation was chartered for the purpose of manufacturing woolen goods, and the sale was ultra vires.1 Contract upon an account annexed for goods sold the defendant. At the trial in the superior court, before BACON, J., the jury found for the plaintiff, and the defendant filed a bill of exceptions, which was disallowed by the court, and the defendant then filed his petition to prove his exceptions. The facts are stated in the opinion. W. A. Gile, for defendant. The main point of contention was as to the right of the corporation, under its charter, to do grocery business, when it was organized and empowered to do business, under the name of the "Slater Woolen Company," for the purpose of manufacturing woolen fabrics. The ruling of the court did not cover the contention of the defendant. The court did not even contemplate the possibility of any limitation to the power of the corporation to carry on its business. The court assumed that either the jury knew the law on this subject, or that it was so elementary that they should have known it. The question decided in Butchers', etc., Bank v. McDonald, 130 Mass. 264, is not the question here. See Lyndeborough Glass Co. v. Massachusetts Glass Co., 111 Mass. 315. The burden is upon the plaintiff corporation to prove that it was empowered to make the contract, and is not upon the defendant to show that the corporation is not so empowered. See Davis v. Old Colony R. Co., 131 Mass. 258; Attorney General v. Jamaica Pond Aqueduct Corp., 133 Mass. 361; Attorney General v. Tudor Ice Co., 104 Mass. 239; Whittenton Mills v. Upton, 10 Gray, 582; Chester Glass Co. v. Dewey, 16 Mass. 94; National Pemberton Bank v. Porter, 125 Mass. 333, 336; Attleborough Nat. 1One dealing with a corporation is estopped by his contract from denying the validity of its organization, or its power to enter into the contract. Town of Searcy v. Yarnell, (Ark.) 1 S. W. Rep. 319, and note; Wentz v. Lowe, (Pa.) 3 Atl. Rep. 879; Broadwell v. Merritt, (Mo.) 1 S. W. Rep. 855; Broadwell v. Weller, Id. 857: Broadwell v. Jenkins, Id. 857; Broadwell v. Alexander, Id. 858; Broadwell v. Terry, Id. 858; Grangers' Business Ass'n v. Clark, (Cal.) 8 Pac. Rep. 445; Inter-mountain Pub. Co. v. Jack, (Mont.) 6 Pac. Rep. 20. Bank v. Rogers, Id. 339. Therefore it is not open to a third party, not knowing or intending to deal with the corporation, to object that the corporation did not make the contract because it could not make it. Could this corporation delegate to another what it could not do itself? We submit that the instruction given, taken in connection with what follows, cannot properly be made the basis of a judicial determination in this or any cause. H. J. Clarke and Bacon, Hopkins & Bacon, for plaintiff. FIELD, J. If we assume that the truth of the exceptions has been established, we think that they must be overruled. The substance of the defendint's contention is that the Slater Woolen Company, having been incorporated 'for the purpose of manufacturing fabrics of wool and worsted, or of a mixtre thereof, with other textile materials," could not, by and in the name of persons who were in fact keeping a store as its agents, but whose agency was undisclosed, sell groceries, dry goods, and other similar articles to the defendant, who was not employed by the company, and then maintain an action against him to recover either the price or the value of the goods sold. If the goods were the property of the plaintiff, and were sold by its agents, the plaintiff can sue as an undisclosed principal. Chester Glass Co. v. Dewey, 16 Mass. 94. It was said of this case, in Davis v. Old Colony R. Co., 131 Mass. 258, 273, that "the leading reason assigned was: The legislature did not intend to prohibit the supply of goods to those employed in the manufactory;' in other words, the contract sued on was not ultra vires. That reason being decisive of the case, the further suggestion in the opinion, Besides, the defendant cannot refuse payment on this ground, but the legislature may enforce the prohibition by causing the charter to be revoked when they shall determine that it has been abused,' was, as has since been pointed out, wholly obiter dictum." But the weight of authority supports, we think, the last reason given in its application to the facts of the present case. There is a distinction between a corporation making a contract in excess of its powers, and making a contract which it is prohibited by statute from making, or which is against public policy or sound morals; and there is also a distinction between suing for the breach of a contract wholly executory, and suing to recover the value of property which has been received and retained by the defendant under a contract executed on the part of the plaintiff. 6 If it be assumed, in favor of the defendant, that the contracts of sales in the case at bar were ultra vires of the corporation, they were not contracts which were prohibited, or contracts which were void as against public policy or good morals. The defect in them is that the corporation exceeded its powers in making them. The defendant, under these contracts, has received the goods, and retained and used them. We think that the corporation can maintain an action of contract against the defendant to recover the value of the goods. We are not required to determine whether an action can be maintained to recover the price, as no exception has been taken to the measure of damages. Chester Glass Co. v. Dewey, ubi supra; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Woodruff v. Erie R. R., 93 N. Y. 609; Nassau Bank v. Jones, 95 N. Y. 116; Township of Pine Grove v. Talcott, 19 Wall. 666-679. See Whitney v. Leominster Sav. Bank, 141 Mass. 85; S. C. 6 N. E. Rep. 551; Bowditch v. New England Mut. Life Ins. Co., 141 Mass. 272; S. C. 4 N. E. Rep. 798; Wright v. Pipe-line Co., 101 Pa. St. 204. The remaining objections need not be noticed. Exceptions overruled. (143 Mass. 399) OSGOOD and another v. STEVENSON. (Supreme Judicial Court of Massachusetts. Suffolk. January 10, 1887.) ALTERATION OF INSTRUMENTS-SUBSCRIPTION TO BOOK-INSERTION OF WORD "CLOTH" AND FIGURES "6.25." A written contract of subscription for certain books is materially altered by the insertion of the word "cloth," and the figures "6.25," after the contract has been signed, and a contract thus altered is not binding upon the signer.1 Contract, in which the plaintiff declared on a contract partly printed and partly written, of which the following is a copy (the portions italicized being the portions which were in writing:) BOSTON, MASS., July 3, 1880. To James R. Osgood & Co.: Please register my name as a subscriber for one copy of the Memorial History of Boston, bound in cloth at $6.25 per volume, which I hereby agree to receive of James R. Osgood & Co., their agent or assigns, and to pay the price per volume indicated above, upon the delivery to me of each and every volume; "each copy of the history being complete in four volumes." It is understood that any arrangement with the canvasser other than the above must be made in writing, and agreed to by the signature of the publishers. $6.25 per volume | Name, (signed,) Cloth, (beveled,) 8.50" 8.50" 10.50 " J. Henry Stevenson, At the trial in the superior court, before THOMPSON, J., the signature of the defendant was admitted. The defendant alleged, in his answer, fraud in obtaining the signature, and testified that he did not read what he signed; that he was told by the canvasser that he was to have the whole work for $6.25. The defendant also testified that all of the written portions of the contract had been inserted, without his knowledge or consent, after he had signed the blank form. The plaintiffs, in rebuttal, called the canvasser, who testified that all of the blanks were filled before the signing by the defendant. There was evidence that there was some talk, at the time of the signing of the contract, between the defendant and the canvasser, the plaintiffs' agent, as to the style of binding; and it was admitted that the first volume was left at the house of the defendant by the agent of the plaintiffs, bound in cloth; and the defendant soon after paid the said agent, without objection, $6.25. The defendant testified that he went to the place of business of the plaintiffs, and stated to them that he was told by the canvasser that he should have the entire work for $6.25, and notified the plaintiffs that he would not receive any more volumes of the work unless they were sent without any additional payment therefor, as he was promised the entire work for $6.25. The plaintiffs tendered to the defendant the other three volumes, and the defendant declined to receive the same, or to pay anything in addition to the amount already paid for them, saying that he had been imposed upon by the canvasser. He made no objection to the form of the binding of the volume left at his house. The defendant asked the court to instruct the jury that if there was any alteration of the contract by writing in any words or figures in the blanks, after the signature of the defendant, and not in his presence, they must find for the defendant. The court did not so instruct the jury, but instructed the jury that the defendant being able to read, and having the opportunity to read the contract signed by him, would be bound by it, although he did not read it, unless his signature was obtained by fraud; and that if any material alteration was made in the contract after it was signed by the defendant, and de 1 As to the effect of material alteration of a written instrument, see Hood's Appeal, (Pa.) 7 Atl. Rep. 137. As to what are material alterations, see Stephens v. Davis, (Tenn.) 2 S. W. Rep. 382; Singleton v. McQuerry, (Ky.) 2 S. W. Rep.-. livered to the plaintiffs' agents, without the consent of the defendant, it would make the contract void; and that if the word "cloth," and the figures "6.25," were written after the contract was signed by the defendant, without his consent, by the plaintiffs or their agent, the alteration was a material one, and the plaintiffs could not recover upon such contract. The jury found for the defendant, and the plaintiffs alleged exceptions. J. E. Butler, for plaintiffs. The defendant was and is estopped from saying that he signed a contract without reading it, or without knowing its contents, when he had an opportunity to do so; and, a fortiori, could not set up a verbal and special contract with the canvasser when his signed contract read: "It is understood that any arrangement with the canvasser other than the above must be made in writing, and agreed to by the signature of the publishers." The contract was entire, and not misleading. See Barrie v. Earle, 8 N. E. Rep. 639, (Sup. Ct. Mass. decided October 23, 1886.) The alleged inter writings must be considered as memoranda, none of which did, or could by any possibility, alter the true intent of the parties. See Angle v. Northwestern Mut. Life Ins. Co., 92 U. S. 330; Whitmore v. Nickerson, 125 Mass. 496; Greenfield Sav. Bank v. Stowell, 123 Mass. 196; Fearing v. Clark, 16 Gray, 74. The filling of blank spaces in an executory contract is not a material alteration,-the case not coming within the memoranda required to satisfy the statute of frauds; and if made without fraudulent intent, and conformatory to the true intent of the parties, and without the purpose of procuring an advantage, it will not vitiate the instrument, even though it be material. The defendant intended to purchase one of the four styles of binding; and, even had the spaces remained blank, the contract was so plain, and its intent so evident, that he would have been compelled to elect some style of binding. That he did not intend to choose the "cloth" at "6.25," is concluded by his ratification. Dana B. Gove & Sons, for defendant. The jury having found that the signature of the defendant was obtained by the fraudulent representations of the plaintiffs' agent, which representations were known by said agent to be fraudulent, the defendant had the right to rescind the contract. Prescott v. Wright, 4 Gray, 464; Jewett v. Carter, 132 Mass. 337. The contract sued on was not the contract made between the parties; and the filling in by plaintiffs' agent of the blank spaces in the printed contract after delivery, and contrary to the terms of the agreement made with defendant, and without his knowledge or consent, was a material alteration, and the plaintiffs cannot recover. Fay v. Smith, 1 Allen, 478; Wade v. Withington, Id. 563; Draper v. Wood, 112 Mass. 319. The fact that the defendant paid for the first volume of the work after it was left at his house is immaterial, as he immediately, upon learning that there was more than one volume to the work at $6.25 per volume, notified the plaintiffs what their agent had represented to him, and refused to receive or pay for any more volumes. FIELD, J. If the contract, after the defendant signed and delivered it, was materially altered, without his authority, the contract, thus altered, was not made by the defendant. The insertion of the word "cloth," and of the figures "$6.25," was plainly a material alteration. The plaintiffs declare upon a contract which the jury have found to have been materially altered, without the defendant's consent, and it is therefore not the defendant's contract. Excep. tions overruled. (143 Mass. 413) MOORE, Adm'r, v. SPIEGEL. (Supreme Judicial Court of Massachusetts. Suffolk. January 10, 1887.) 1. ACTION-ABATEMENT ASSIGNMENT OF CHOSE IN ACTION-ANSWER-DEFENSE. An answer alleging an assignment of the cause of action by the plaintiff is not a defense, but an action may be dismissed on motion, if the defendant proves an assignment by the plaintiff, that the plaintiff has no beneficial interest in the cause of action, and that the bringing of the suit or its prosecution had not been authorized by the assignee. The assignee could ratify the bringing of the suit, or, on reassignment to him, the plaintiff could prosecute it for his own benefit. 2. ESTOPPEL-REPRESENTATIONS AS TO TITLE-ATTACHMENT AND SALE. Where the owner of certain property inadvertently makes representations which induce another to believe that the property belongs to a third party, and he attaches the property as belonging to this third party, the owner, in an action for conversion by the attachment, is not estopped to set up his title.1 Tort for the conversion of a lot of whisky The answer denied the conversion, and that the whisky was the property of the plaintiff; alleged an assignment of the plaintiff's claim to one Vanderveer, and the bringing of a suit thereon in New York by said Vanderveer, where the defendant resided; and further alleged that the whisky belonged to one Mrs. Reilly, of Boston, and was sold by due process of law against her. It was admitted that the whisky was sold in bond by the defendant to one E. J. Reilly, husband of the said Mrs. Reilly, subject to the payment of the government tax thereon. Reilly suffered the whisky to remain in bond, and, while it was so in bond, and the tax unpaid, said Reilly died, and the plaintiff was appointed administrator upon his estate. At the trial in the superior court before PITMAN, J., it appeared that in September, 1883, the defendant, in New York, received a letter purporting to come from the plaintiff, inquiring when the time would expire "for withdrawing the Guckenheimer rye whisky sold by you, April 4, 1881, to E. J. Reilly, of Boston." The letter also contained the following: "The widow of said Reilly would like to sell it, if she could, there; but, if she cannot, then the government tax will be forwarded to you, with charges, storage," etc. The letter was signed "ROBERT MOORE, Administrator, per E. W. S." The defendant thereupon paid the government tax upon the whisky, which the plaintiff repaid to the defendant, and the defendant thereupon gave the plaintiff the following receipt: "Received, Boston, October 4, 1883, of Robert Moore, Esq., administrator for E. J. Reilly, the sum of $527.80, tax advanced by us on fifteen barrels of Guckenheimer, held by us for Mrs. E. J. Reilly. M. SPIEGEL & Co." The plaintiff then gave the following order to the defendant, indorsed upon the back of the warehouse certificate relating to the whisky in question: "Please forward within whisky to me, for account of Mrs. E. J. Reilly. "ROBERT MOORE, Adm'r." The plaintiff testified that he signed these papers at the request of the defendant's agent; that he glanced at them, and "thought everything was all straight;" that Mrs. Reilly had in fact nothing to do with the whisky. The defendant's agent testified that he thought that if he had communicated to Mr. Moore his intention to charge the whisky to Mrs. Reilly he would not have paid him a dollar of the tax. The plaintiff contended that he did not authorize the writing of the above letter, and that he did not notice the statement in the above receipt concerning Mrs. Reilly; but admitted he directed the writing of a certain letter relating to the whisky, by the scrivener who wrote the above letter, but denied that he authorized the statement therein 1 See note at end of case. |