Burnham v. Wilbur

7 Bosw. 169

Opinions

By the Court. Hoffman, J.

—When the case was settled by me, I felt great doubts whether the rulings, the subjects of some of the present exceptions, were correct. I am upon this argument, satisfied they were not.

A material question in the case is, whether the agreement on which the action is founded, was not executed by the defendant and the four who signed with him, on the express condition and understanding that all the directors were to unite in it, and that it was inoperative as a contract at all, until that condition was complied with. It is true, as contended, that an instrument may be so worded as to show, that although it was expected to be signed by others, yet, those who do sign, become bound, notwithstanding the omission of the others. But the present agreement does not make out a case of such a character. The testimony to establish the condition precedent,' was therefore admissible. The proffered evidence also which tended to define the extent and time of the duration of the liability to be incurred, was not inconsistent with the agreement, and ought to have been allowed.

The evidence, noticed under the 1st, 2d, 5th and 6th points of the defendant as excluded, ought to have been admitted under the views of the case I now take.

The error committed below in the early part of the trial, of treating the sealed agreement as not open to any explanation of its conditional execution and extent, pervaded the remaining rulings of the judge, which were in general consistent with this ruling, and were erroneous, because of that original error.

I think there must be a new trial with costs to a^ide the event.