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Atherton v. Newhall.

Refusing time to send for a witness has been held ground for setting aside an award (Torrance v. Amsden, 3 McLean, 509), and also the contrary has been held. Cutting v. Carter, 29 Vt. 72.

An application to set aside an award was denied in the following cases: where the arbitrators asked one of the parties to consent to allow a claim accruing subsequently to the arbitration agreement (Innes v. Miller, 1 Dall. 188), where one of the arbitrators on the hearing asked a stranger if the defendant could pay a certain suin if awarded against hiin (Rheem v. Allison, 2 S. & R. 113); where an arbitrator questioned witnesses at the request of the party who proved successful. Butler v. Boyles, 10 Hamph. 155. But where the questioning was in the absence and without the consent of the other party, the award was set aside. Dobson v. Groves, 6 Q. B. 637.

ATHERTON v. NEWHALL,

(123 Mass. 141.)

Statute of frauds Delivery Acceptance.

An oral agreement to purchase all the leather of a certain thickness in a large

pile of leather, the same to be selected by the seller ; the delivery of a part of the leather thus selected to & common carrier not expressly authorized by the purchaser to accept it, and the acceptance by the purchaser of that part from the carrier, without any intention to accept the remainder, do not constitute a sufficient acceptance to take the sale out of the statute of frauds.*

| CTION in contract to recover for 660 sides of sole leather. A Plaintiffs were dealers in leather in Boston, the defendants manufacturers of boots and shoes in Lynn. On Saturday, November 9, 1872, one of the defendants called at plaintiffs' store, and orally agreed to buy all the leather of a certain thickness in a certain pile in the store. After he had gone the leather was selected, rolled into 44 rolls, containing 660 sides, weighed, marked with defendants' names, and placed near the front door of the store. On the same day the Lynn expressman, who was in the habit of calling at the store for goods, called and took a wagon load, or six rolls, containing ninety sides, of the leather, and on the following Monday delivered it to defendants, who were regular

* See Cooke v. Millard, 22 Am. Rep. 619; Hewes v. Jordun, 17 id. 578; Hahn v. Fredericks, 18 id. 119; Washington Ice Co. v. Webster, 16 id. 462; Caulkins v. Hellman, 7 id. 461, and note. Delivery to carrier, see Cross v. O'Donnell, 4 id 721; Johnson v. Cuttle, 7 id. 545.

Atherton v. Newhall.

customers of his. He had, however, received no order from either party. The plaintiffs' store, with all its contents, including the rest of the leather in question, was burned in the great fire of November 9, 1872. On Monday, November 11, 1872, one of the defendants called on plaintiffs, produced a bill for the 660 sides, which bill he had received from plaintiffs, and asked their bookkeeper to correct it to correspond with the amount actually received by defendants, and he accordingly deducted 660 sides from the bill. On March 20, 1873, he tendered to plaintiffs the amount due for the 90 sides, which they declined. The court below directed a verdict for the 90 sides, and reported the case for the consideration of this court.

E. Avery & G. M. Hobbs, for plaintiffs.

R. M. Morse, Jr., for defendants. GRAY, C. J. It is unnecessary to consider whether there was a sufficient delivery to complete the sale, because it is quite clear, upon the authorities, that there was no such acceptance and receipt of part of the goods as would satisfy the statute of frauds. Gen. Stats., ch. 105, § 5. Such acceptance must be by the buyer himself, or by some one authorized to accept in his behalf. The acts of the buyer on Saturday did not constitute such an acceptance, because, according to the seller's own testimony, the buyer merely agreed to take all the sides of leather of a certain thickness, which were not then set apart by themselves, but formed part of a large pile from which they were afterward to be selected by the seller. Knight v. Mann, 118 Mass. 143. The receipt of part of the leather by the expressman did not constitute such an acceptance, because he was not authorized to accept so as to bind the buyer. Johnson v. Cuttle, 105 Mass. 447; s. C., 7 Am. Rep. 545. The acceptance by the buyer on Monday, of the part brought by the expressman, was not a sufficient acceptance to take the sale of the whole out of the statute, because it appears that it was not with an intention to perform the whole contract and to assert the buyer's ownership uder it, but on the contrary, that he immediately informed the seller's clerk that he would be responsible only for the part received. Townsend v. Hargraves, 118 Mass. 325, 333; Remick v. Sandford, 120 id. 309.

Judgment on the verdict.

Shoe and Leather National Bank v. Dix,

SHOE AND LEATHER NATIONAL BANK V. DIX.

(123 Mass. 148.,

Note by trustees - Personal liability.

A, B and C, trustees of a land association, purchased land for the association,

took a deed of the same to themselves as such trustees, setting forth their powers. In payment they mortgaged the land to the grantor, accompany. ing the mortgage with a promissory note, beginning, “we as trustees but not individually promise to pay," and signed “ A, B, and C, trustees," and purporting to be secured by mortgage of real estate. Held, in an action by an indorser, who took the note after maturity, against the makers, that they were not personally liahle, in the absence of proof that they had funds of the association in their hands applicable to this debt.*

edo forth thin question. The fac

ACTION of contract on a negotiable promissory note, signed by A the defendants, with the addition of the term “trustees," and conditioned to pay “ as trustees but not individually," and purporting to be “ secured by mortgage of real estate in Boston.” The note was indorsed in blank by the payee to the plaintiff. The defendants were trustees of a private association, engaged in purchasing real estate, and had power to take, hold, mortgage, lease, manage, improve, and grant real estate for the association. As such trustees they purchased land, took a deed thereof to themselves as such trustees, setting forth their powers, and executed in payment a mortgage and the note in question. The plaintiff never had the mortgage, it having been foreclosed. The facts were agreed on, subject to the opinion of the court.

H. D. Hyde, for plaintiffs.
S. Bartlett and A. C. Clark, for assignee of Dix.
P. Cummings, for Sanger.

AMES, J. The question whether the defendants have made themselves personally responsible must be determined by the terms

vote.

* See Power: v. Briggs, 22 Am. Rep. 175; Burlingame v. Brewster, id. 177, and

Vol. XXV.-7

Shoe and Leather National Bank v. Dix.

of the note itself. In determining the proper interpretation of any written contract, the court will give full effect to all the terms in which it is expressed. Those terms will not be modified by extrinsic evidence tending to show that the real intention of the parties was something different from what the language imports. They will be taken in their plain, ordinary and popular sense, except where it may be qualified by some special usage, or where the context evidently shows that the parties in some particular case had a different intent. It is no part of the business of the court to make or alter a contract for the parties. Even if it be found that the contract, according to its true meaning, has no legal validity, or fails to become operative, it is not for the court, in order to give it operation, to suppose a meaning which the parties have not expressed, and which it is certain they did not entertain. It must be assumed that all the language used in the contract was selected with some purpose and is to be of some effect. If a party, therefore, in a contract into which he voluntarily enters, and not in the execution of any official trust or duty, makes it an express stipulation that he is acting for somebody else, and is in no event to be personally liable, he certainly cannot be rendered so by law. SEDGWICK, J., in Sumner v. Williams, 8 Mass. 162, 184. In a question as to the meaning of a contract, the want of apt words to create a personal responsibility is not to be supplied by the alteration or enlargement of its terms.

In applying these familiar and elementary rules of construction to the case now before us, we find that the defendants promised “ as trustees but not individually.” The construction contended for by the plaintiffs would require us to strike out the words “but not individually ;” although in so doing we should not only alter the contract, but should impose upon them a liability which apparently they took special pains to avoid.

It is to be borne in mind that this was not a case of agents acting for an undisclosed or unknown principal, and is, therefore, readily distinguishable from Winsor v. Griggs, 5 Cush. 210, and cases of that class. Neither was it an attempt by the defendants to bind property over which they had no legal control. By the terms of the deed they had power to mortgage, lease and manage the property at their discretion, but for the benefit and on the account of the equitable owners, namely, the members of the Brookline Avenue Association. In this respect the case differs from Thatcher V. Dinsmore, 5 Mass. 299, Forster v. Fuller, 6 id. 58, and other Shoe and Leather National Bank v. Dix. cases of that class, in which a party promising “as guardian,” etc., was held to have made himself personally liable.

Neither can it be said that the term “ trustees” was used as “ a mere description of the general relation or office which the person signing the paper holds to another person or to a corporation, without indicating that the particular signature is made in the execution of the office and agency.” In this respect the case differs from Tucker Manuf. Co. v. Fairbanks, 98 Mass. 101. It often has happened that an agent for another person, or the treasurer of a corporation, has made himself personally responsible, by the form of words in which he has expressed himself in a written contract, when he may have intended to bind his principal only. Cases in which this question has been raised have often been before this and other courts, and the authorities have recently been collected and reviewed in several of our own decisions. See Slawson v. Loring, 5 Allen, 340; Barlow v. Lee Congregational Society, 8 id. 460 ; Tucker Manuf. Co. v. Fairbanks, ubi supra. But we believe no case can be found in which a promise “as trustee,” etc., accompanied with an express disclaimer of personal liability, would fail to exempt him.

It is contended that if these defendants are not liable upon the contract as a note, then nobody is liable. Even if such were the fact, it would not be in the power of the court, as we have already seen, to alter the contract for the purpose of giving it validity. In deciding whether the defendants have or have not bound themselves, we need not decide whether they have or have not bound their principals. Abbey v. Chase, 6 Cush. 54. But, even if the written contract should fail of taking effect as a negotiable note, it might still be operative as an acknowledgment of unpaid debt, which the mortgage was intended to secure. It may be that this was all that the original parties intended, or supposed to be material. They may have considered the mortgage sufficient security, without the personal responsibility of the trustees.

Our conclusion, therefore, is that, without proof that the defendants, as trustees, have funds of the association in their hands applicable to this debt, no action can be maintained against them, No evidence to that effect having been offered, we must order

Judgment for the defendants.

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