Esselstyn v. McDonald

98 A.D. 197, 90 N.Y.S. 518

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1904
• Status: Published

Opinion

Willard Bartlett, J.:

Although the written instrument by which the dredge was leased or chartered did not recite the name of James P. McDonald as a party, I think that upon affixing his signature and delivering the paper to the owner of the vessel he made himself a party and became bound as one of the lessees thereunder. (Thomas v. Gumaer, 7 Wend 43; Parks v. Brinkerhoff, 2 Hill, 663; Clark v. Rawson, 2 Den. 135; Perkins v. Goodman, 21 Barb. 218; Ex parte Fulton, 7 Cow. 484.) In these and similar cases the courts have held liable as parties to a contract persons who subscribed their names thereto but were not mentioned in the body of the document. This is considered to be an application of the rule which requires 1 effect to be given to all parts of a written instrument, where that is possible. (Blackmer v. Davis, 128 Mass. 538, 541.) The principle governing the Massachusetts decisions of like purport is stated to be “ that one who signs and delivers a written instrument containing a distinct promise to the party to whom it is delivered, must be presumed to have intended to bind himself to the performance of the promise.” It has usually been applied in cases where the contract contains promises only in favor of the party to whom it is delivered, but there is no good reason why it should not be equally applicable to a contract containing mutual stipulations between the parties named in the body of the agreement, where the doubt or ambiguity on the face of the instrument, as to the capacity in which the third signer intended to bind himself, may be resolved by the aid of explanatory parol evidence. Such evidence was received in Ahrend v. Odiorne (125 Mass. 50), and was properly admitted, I think, in the present case to show whether James P. McDonald signed as a lessee or a lessor of the dredge, a matter as to which no inference could be drawn one way or the other from the language of the contract itself. “ While it is the province of the court to construe contracts, jet where the meaning is obscure and depends upon facts aliunde in connection with the written language, very much must he left to the jury.” (First National Bank v. Dana, 79 N. Y. 108, and cases cited.) This oral testimony authorized the jury to find, as their verdict shows they must have found, that the lessor Rittenhouse Moore told James P. McDonald in substance that he would not enter into the proposed contract unless it was signed by him as lessee, and that upon such refusal James P. McDonald affixed his signature, in addition to that of the McDonald Dredging Company. In this view the appellant was properly held liable as one of the principal parties to whom the dredge was chartered or leased.

The proof supports the further finding of the jury that the dredge was in the possession of the defendants during the whole period alleged in the complaint. It also sufficiently established the plaintiff’s claim to recover the amount paid out to release the vessel from liens incurred while she was under the defendants’ control.

As to the question of the extra allowance, the case seems fairly to fall within the class in which additional costs may properly be granted.

The judgment should be affirmed.

All concurred.

Judgment and order affirmed, with costs.