
    William W. Allcott vs. The Boston Steam Flour Mill Company.
    after the commencement of a contract of service between the plaintiff and the defendant, the former wrote to the latter: “ I think it will be for the mutual advantage of all parties that either party have the liberty of annulling the contract by giving three months’ notice of such intention in writing; ” and again, as follows : “A few days ago, I addressed a note to you, in which I suggested the making an additional clause to our contract; ” to which letters the defendants replied that they had “voted to accept the alteration or amendment proposed ; ” whereupon the plaintiff immediately wrote : “I refuse to agree to the proposition contained in your letter; ” such correspondence does not amount to an alteration of the original contract, so as to justify a three months’ notice by the defendant? of their intention to terminate the contract, and a withholding of the plaintiff’? salary after that time; the plaintiff’s letters containing merely a suggestion 01 intimation.
    This was an action of covenant, and was tried in this court before Fletcher, J., by whom it was reported substantially as follows: —
    The writ bore date the 7th of July, 1848. The plaintiff declared on an indenture between himself and the defendants, dated April 25, 1845, wherein the plaintiff agrees to serve the defendants, as superintendent of their flour mill, about to be erected at East Boston, for the term of five years, and for the salary of twenty-five hundred dollars, payable semiannually, and a certain portion of the profits of the business, and subject to certain qualifications and limitations set forth in the indenture. The plaintiff avers in his declaration, that he commenced serving the defendants on the 1st day of July, 1846, in the capacity of superintendent, and so continued to serve the corporation in that capacity, doing all his duty in that respect, as expressed in the indenture, until and up to the 5th day of January, 1848; and that, ever since that day, he has been ready and willing, and hath continually tendered and offered to serve the corporation in the capacity of superintendent, and to do all things which belonged to him to be done, agreeably to the covenants and agreements therein contained ; but the plaintiff further avers that the corporation refused to permit him to serve them, and did, on the 5th day of January, 1848, discharge him, against his will and without his consent, from the office of superintendent, and did forcibly eject and expel him therefrom, and from the mill, store-houses, and other premises of the corporation, and still do keep and hold him out from their service.
    The plaintiff also sets forth, as the breaches by him relied upon, and for which he claims damages, the omission and refusal to pay him two quarter-yearly payments of six hundred and twenty-five dollars each ; one due on the 1st dar of April, and the other on the 1st day of July, 1848, and the omission and refusal of the corporation to pay him the share and amount of profits due to him, appearing by the books of the company, as made up by the treasurer thereof, on or about the 8th day of March, 1847; the share thereof belonging to the plaintiff, as claimed by him, being about the sum of one thousand dollars.
    The defendants pleaded the general issue, and filed a specification of their grounds of defence.
    To prove his case, the plaintiff gave in evidence the original indenture, the execution of which was admitted. It was also admitted by the defendants, that the plaintiff was ejected and expelled from their mill and premises on the 5th day of January, 1848, in pursuance of certain votes passed by the directors, and that they had ever since refused to receive his services.
    The ground of defence was that the original contract had been subsequently altered by mutual consent, by which alteration either party might terminate their relation to each other, by a notice of three months, and that the defendants had given such notice, and that the plaintiff had been paid to such termination of the contract. To prove such alteration the defendants introduced two letters from the plaintiff to the president of the' Boston Steam Flour Mill Co., as follows :—
    October 19,1847.
    “ I think it will be for the mutual advantage of all parties interested in the contract with me for my services, entered into on the 25th day of April, 1845, that either party have the liberty of annulling the same, by giving three months’ notice of such intention in writing.”
    And again, to the same address, October 25,1847:—
    “ A few days ago I addressed a note to you, in which I suggested the making an additional clause to the contract with me for my services.
    “ I would also make one request in relation to said contract, about which it is evident that there is some misunderstanding. I wish that my duties, marked out under that contract, may be clearly and explicitly defined. If this is done, I think that much bad feeling may be saved in future. I am extremely anxious to know just what is expected of me.”
    On the 7th of December, the defendants informed the plaintiff that they had “ voted to accept, as an amendment of the contract with William W. Allcott, the alteration or amendment proposed by him, in his letter, of the 19th of October last, to wit, — “that either party have the liberty of annulling the same, by giving three months’ notice of such intention in writing; — and the alteration is considered as made, and may be indorsed upon the contract at once.”
    The defendants also introduced Elijah D. Brigham as a witness, who stated that, in October, 1847, he was general agent of the defendants, and that in that month, either on the 15th or 16th, as he thought, an informal meeting of several of the directors, viz: Messrs. Sturgis, Lombard, Hendee, and Soule, was held at the lodgings of the witness, at the Albion, at which the plaintiff and witness were present; that, at that interview, the plaintiff addressed himself to those of the directors" present, and stated that, to show he had only the best interests of the concern in his mind, he would propose an addition to his contract for services, — that he would propose that either party should have the right to annul it, by giving the other three months’ notice. One of the directors said it struck him favorably, and desired the plaintiff to make his proposition to the directors in writing. All were pleased with the proposition. The witness thought the plaintiff said he would make it in writing. The plaintiff in reply to the defendants’ letter of the 7th of December, wrote on the 10th to them, saying: “ Under existing circumstances, I am not disposed to agree to any modification of the contract existing between us. To avoid all mistake, I wish to be understood as saying that I refuse to agree to the proposition contained in your letter above referred to.”
    The plaintiff also put into the case the vote of the directors of the corporation, passed December 11,1847 :—
    “ That Messrs. Hendee and Soule be a committee to confer with Mr. Allcott, and see if an arrangement can be made with him to give up his off-e as superintendent.”
    
      Richard Soule, in behalf of the plaintiff, testified that he was one of the directors of the defendants; that, in pursuance of the vote of the directors above mentioned, Mr. Hendee and himself had an interview with Alleott, at witness’ dwelling-house ; their object was to obtain from Alleott the terms upon which he would quit his post; that they discussed the matter, and Alleott agreed to furnish to them in writing the terms-upon which he would do so.
    At the suggestion of the judge, it was agreed that the case should be submitted, upon the foregoing evidence, to the whole court.
    If the court shall be of opinion that the evidence is sufficient to show, and does show, a change or modification of the contract, and that covenant will not lie to enforce any claim of the plaintiff for compensation arising subsequently, the plaintiff is to be nonsuit; otherwise, the case is.to be sent to an assessor or master, to determine whether any, and if any, what sum is due to the plaintiff, under such instructions as the court may give, and judgment for the plaintiff or defendants is to be entered upon such report, as confirmed by the court.
    
      H. H. Fuller, for the plaintiff.
    There was no offer, or proposal, or promise, on the part oí the plaintiff, to make any change or modification; he merely suggests the subject for consideration ; see his letters to Lombard, and Brigham’s testimony. The letters were addressed to Lombard, the president of the corporation, and not to the directors, as were his communications designed for the corporation.
    
      S. Bcvrtlett, for the defendants.
    The indenture between the plaintiff and defendants, al-hough under seal, may be modified, changed, or altered by parol. Mill Dam Fowndery v. Hovey, 21 Pick. 417, 429, 436; Cummings v. Arnold, 3 Met. 486.
    The letters between the parties do constitute a contract between them, and alter the indenture aforesaid. Kennedy v. Lee, 3 Merivale, 441; Mactier v. Frith, 6 Wend. 103, 116, 122; Averill v. Hedge, 12 Conn. 424; Adams v. Ldndsell, 1 B. & Aid. 681; Foster v. Boston, 22 Pick. 33; Ihmlop v. Higgins, 1 Clark & Finnelly, (N. S.) 381.
   FletcheR, J.

The plaintiff in this action, which is covenant broken, declares upon an indenture between himself and the defendant corporation, bearing date the 25th day of April, A. D. 1845, in which the plaintiff agrees to serve the said corporation, as superintendent of their flour mill, about to be erected, for the term of five years; for which services the corporation agree to pay him a salary of twenty-five hundred dollars, payable semi-annually, and also a certain portion of the profits of the business, subject to certain qualifications and limitations, set forth in said indenture. The plaintiff alleges a performance and a tender of performance of all things which belonged to him to perform, agreeably to the covenants and agreements contained in said indenture.

The plaintiff further avers, that the corporation refused to permit him to serve them, and did, on the 5th day of January, 1848, discharge him, against his will and without his consent, from said office of superintendent, and did forcibly eject and expel him therefrom, and from the mill, storehouses, and other premises of the corporation, and still do keep and hold him out from their service.

The plaintiff also sets forth, as the breaches by him relied upon and for which he claims damages, the omission and refusal of the corporation to pay him two quarter-yearly payments, of six hundred and twenty-five dollars each, and the omission and refusal of the corporation to pay him the share and amount of profits due to him.

The defendants set up,' as a defence to the action, that the contract between the parties, as contained in the original indenture, had been changed by mutual agreement, so that either party had a right to terminate the contract, under the indenture, by giving the other three months’ notice ; and that the defendants, in pursuance of the provision of the contract as thus changed, had given the three months’ notice, and had thus terminated the contract, so that the plaintiff was not entitled to the wages and profits claimed in this suit.

To show the alleged alteration in the contract, two letters of the plaintiff were introduced, which the defendants insisted made an agreement on his part, that the contract should be altered as alleged, so that either party might terminate the same, by giving three months’ notice to the other. The defendants also introduced a vote of the corporation, agreeing on their part to such alteration, and alleged that the contract had thus been altered by the mutual agreement, of the parties.

The plaintiff alleged that his letters, introduced by the defendants, did not amount to an agreement on his part, that such an alteration should be made in the contract, but only, contained a suggestion that it might be for the advantage of the parties to make such an agreement; thus inviting the defendants to a conference on the subject, but that no conference was had, and no agreement was ever in fact made.

The case, therefore, turns upon the construction of the plaintiff’s letters ; whether they contain a suggestion merely, opening the way to a negotiation between the parties, or whether they contain a definite agreement on the part of the plaintiff to the alteration proposed; so that, when the. same was agreed to by the corporation, and notice given to the plaintiff, a binding agreement between the parties was completed, nothing more having been done or said by either party.

Upon examining the letters, it seems too clear for controversy that they contain merely an intimation or suggestion, but nothing like an agreement. In the first letter, which is dated October 19,1847, the plaintiff says : “ I think it would be for the mutual advantage of all parties ” that either party have liberty to terminate the contract, &c. This is merely the expression of an opinion. If the parties had come together, the plaintiff might have insisted upon various terms, conditions, and considerations, before he would have entered into an agreement.

But in his next letter, which is dated October 25,1847, the plaintiff says : “ A few days ago, I addressed a note to you, in which I suggested the making an additional clause to the contract with me for my services.”

In this letter, the plaintiff declares that what was said in his first letter was intended only as a suggestion. In this letter the plaintiff also suggests certain other things as desirable to have done, in amendment of the original contract in the indenture.

The defendants received this last letter more than a month before they acted on the subject; and, therefore, well knew that what was said in his letters was meant by the plaintiff as a suggestion merely, and not as an agreement. The defendants, by treating as an agreement what the plaintiff expressly told them he intended merely as a suggestion, could not make it an agreement. To establish the agree-, ment set up in defence, it was necessary to show the concurrence of both parties; but it does, not appear that the plaintiff, on his part, ever entered into any such agreement, so that the defence wholly fails.

It was maintained on the part of the plaintiff, that, even if his letters contained an agreement on his part, he was released from it by the delay on the part of the defendants in acting on the subject. But it is not necessary to consider this question.

The judgment is, that the suit is well maintained, and tto» case will be sent to an assessor, to ascertain the amount of damages. See post, 376.  