prove "that it was the purpose of the parties | 5. RECEIVERS (§ 81*)-AGENCY. to provide that the ten thousand dollars A receiver does not act as agent of the should be paid only when the waterproofing company of which he is appointed receiver, or on its behalf alone, but is appointed to preserve property pending litigation, or to wind up the affairs of an insolvent, reduce its property into cash, and distribute it among its

of the subbasement was completed in accord-
ance with the terms of the contract." That
was in effect an offer to prove that at the
date of the contract there was no controversy
as to the fact that the contract had not been
completed by reason of the failure to finish
the waterproofing of the subbasement. If
there was in fact no controversy in respect
to the contract not having been completed,
this agreement could not be construed to be
a settlement of a controversy as to that mat-
ter and the construction contended for by the
defendant must be adopted.
Exceptions sustained.

(215 Mass. 194)

creditors.

[Ed. Note.-For other cases, see Receivers, Cent. Dig. § 150; Dec. Dig. § 81.*]

6. RECEIVERS ($ 75*)-ACTIONS-DEFENSES. When the receiver of a company collects a debt due for a sale by it, he collects a chose in action, which is subject to all equities, by way of set-off or otherwise, which exist between the company and the debtor.

[Ed. Note.-For other cases, see Receivers, Cent. Dig. § 136; Dec. Dig. § 75.*]

7. RECEIVERS (§ 178*) -ACTIONS-SUING IN NAME OF COMPANY.

An action by the receiver of a company on a debt due it must be brought in its name, unless it has been assigned to him, and the law of the forum allows him to sue in his own name

ROCHESTER TUMBLER WORKS v. MIT- as assignee.
CHELL WOODBURY CO.

(Supreme Judicial Court of Massachusetts.
Suffolk. June 17, 1913.)

1. RELEASE (§ 33*)-CONSTRUCTION-SCOPE. Defendant purchased goods from four companies, for all of which T. was subsequently appointed receiver, and also bought goods from T., as receiver of one of the companies, subsequent to his appointment. It declined to pay for those bought prior to the receiverships unless a rebate was allowed, and the receiver eventually agreed to allow the rebate, received the amount claimed on those sales, less the rebate, and executed a release discharging defendant from any "further obligations or accounts due to the above-named companies." Held, that the amount due the receiver for the goods sold by him was not an "obligation or account due to the above-named companies," and hence the release did not bar a recovery therefor.

[Ed. Note.-For other cases, see Release, Cent. Dig. §§ 78, 79; Dec. Dig. § 33.*] 2. EVIDENCE (§ 448*)-PAROL EVIDENCE AF

FECTING WRITING.

Where the terms of a written agreement are ambiguous, the circumstances under which it was made are admissible to ascertain its true meaning; but where its terms are capable of only one construction, evidence of outside facts is neither necessary nor admissible.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. § 448.*]

3. TRIAL (8 105*)-PAROL EVIDENCE AFFECT-
ING WRITING-FAILURE TO OBJECT.
Parol evidence of what was said in nego-
tiations leading up to the execution of a writ-
ten contract was incompetent to add to, vary,
or contradict the writing, even though received
without objection.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 260-266; Dec. Dig. & 105;** Evidence, Cent. Dig. § 2430.]

4. EVIDENCE (§ 461*)-PAROL EVIDENCE AFFECTING WRITING.

In determining whether a release covered the debt sued on, parol evidence that defendant did or did not ask for a "full release" was

incompetent.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. & 2129-2133; Dec. Dig. § 461.*]

[Ed. Note.-For other cases, see Receivers, Cent. Dig. §§ 346-351; Dec. Dig. § 178.*] 8. RECEIVERS (§ 178*)-ACTIONS-SUING IN NAME OF COMPANY.

An action by a receiver on a contract of sale made by him during the receivership must be brought in his own name, and not in the name of the company of which he is receiver.

[Ed. Note.-For other cases, see Receivers, Cent. Dig. §§ 346-351; Dec. Dig. § 178.*] 9. RECEIVERS ($ 75*) - ACTIONS-SUING IN NAME OF COMPANY.

An action by a receiver on a contract made by him during the receivership is not subject to any equities, by way of set-off or otherwise, which could be set up against the company.

[Ed. Note.-For other cases, see Receivers, Cent. Dig. § 136; Dec. Dig. § 75.*]

10. RECEIVERS (§ 180*)-ACTIONS-SUING IN NAME OF COMPANY.

In an action by a receiver on a contract made by him during the receivership, a writ sued out in the name of "R. Works, a corporation, * * * which brings this action by T., its trustee and receiver," was not the proper writ, and would have defeated a recovery, had not the objection to its form been waived.

[Ed. Note.-For other cases, see Receivers, Cent. Dig. § 358; Dec. Dig. § 180.*] 11. APPEAL AND ERROR (§ 1075*)—Waiver of

ERRORS.

Where, in an action by the receiver of a corporation for goods sold by him; defendant, after excepting to the refusal of a directed verdict, stated in its brief that there was no dispute as to the prices charged or the receipt of the goods, but that the sole defense was that plaintiff's claim had been discharged by a certain release, it waived the objection to the form of the writ, because sued out in the name the exception would be overruled. of the corporation, instead of the receiver, and

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4253; Dec. Dig. § 1075.*]

Exceptions from Superior Court, Suffolk County; Loranus E. Hitchcock, Judge.

Action by the Rochester Tumbler Works against the Mitchell Woodbury Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Whipple, Sears & Ogden, of Boston, for plaintiff. Carver, Wardner, Cavanagh & Walker, of Boston, for defendant.

LORING, J. [1] The defendant bought of one Thompson, receiver of the Rochester Tumbler Works, three lots of merchandise, and later, of Thompson and a coreceiver subsequently appointed, a fourth lot. This action was brought to recover the price of the four lots, amounting to $214.35. The four lots of merchandise were sold in March and April, 1908. At the trial the defendant admitted the purchases but insisted that a release to the defendant executed by the receivers on February 17, 1910, covered the purchases here in question.

The following facts in connection with that release were put in evidence without objection, and on those facts taken in connection with the release itself the presiding judge left it to the jury to find whether the sales here in question were included in the release.

that it was less than the amount which the books of the defendant company showed to be due he accepted the receivers' figures without verifying the accuracy of their computation. On cross-examination he testified that at first the purchases made by him from the receiver were put into the account of purchases made by him from the companies, because "the bookkeepers did not understand," while later a new account was opened on the defendant company's books of the purchases made by it from the receivers. He further testified that the first of these two accounts included the four purchases made by the defendant company from the receivers as well as the purchases made by the defendant company from the several companies before the receiverships. The president further testified that at the interview on February 16, 1910, he told the receivers that he "would take their settlement if they would give me a full release, which they agreed to do." Both receivers testified that a full release was not granted, asked for or spoken of at this interview. It was testified to at the trial without contradiction that there was no rebate on sales made by the receivers. It did not appear that any rebate on receivers' sales had been claimed at any time.

On September 10, 1910, Thompson wrote to the defendant stating that the three parcels of merchandise bought by the defendant of him as receiver in March and April, 1908, had been overlooked, and asking him to pay for them. A similar letter was written on the same day by the two receivers with respect to the fourth lot of merchandise bought by the defendant of the two receivers in April, 1908. The defendant answered that it had a receipt in full from the receivers and refused to pay; whereupon this action was brought.

The defendant asked for the following rul

The facts referred to were these: Thompson was appointed receiver of the Rochester Company on December 7, of the Riverside Company on December 10, and of the Crystal Glass Company and the Ohio Flint Glass Company on December 17, 1907. Before the receivership these four companies had sold merchandise to the defendant which, with interest to February 16, 1910, amounted to $4,277.51. The defendant had refused to pay the receivers this sum on the ground that it was entitled to a rebate, and four actions had been brought in the superior court to collect these amounts. At first the receivers refused to allow the rebate insisted upon by the defendant, but later they changed their position on this point, and in February, 1910, they came to Boston, called upon the president of the defendant company, and presented to him a written statement (which after-ings: wards was annexed to the release subse- "(1) That on all the evidence the verdict quently made) in which there were set forth the details making up the $4,277.51 stated and in addition the details of the rebate amounting to $1,971.33, which they were then ready to concede. This made the net amount due from the defendant $2,306.17. The receivers presented this statement to the president of the defendant company. He left the room and on his return said that he accepted their figures, and thereupon one of the receivers dictated the agreement of compromise, the material part of which is hereinafter set forth, to which a copy of the statement mentioned above was annexed. This was executed in duplicate the next day, and later, the $2,306.17 was paid by the defendant to the receivers.

The president of the defendant company testified that when he left the room he took to his bookkeeper the receivers' statement or the amount shown by the statement to be

must be for the defendant. (2) A claim for goods sold by the receivers to defendant would be a claim of the plaintiff company and would be an account due the plaintiff company. (3) A claim or account for the goods sold the defendant was a claim or account due the Rochester Tumbler Works and not due the receivers." These were refused and exceptions were taken. The defendant took a further exception to that part of the charge in which the presiding judge told the jury that the burden was on the defendant to prove that the claim here sued on was covered by the release. The plaintiff had a verdict, and the case is here on these exceptions.

[2-4] The settlement made between the receivers and the defendant company on February 17, 1910, was in writing. Being in writing the question whether it did or did not release the defendant from the debt due

by it from them depends upon the terms of
that written agreement. If the terms of the
agreement had been ambiguous, the circum-
stances under which it was made would have
been admissible to ascertain its true mean-
Ing (Whidden & Co. v. Jordan, 102 N. E.
436); while no recourse to outside facts was
necessary or admissible to
to ascertain its
meaning if its terms were not capable of
more than one construction. In either event
evidence of what was said in the course of
the negotiations which led up to the making
of the settlement made in writing was inad-
missible to add to, vary or contradict it.
And this is true even if (as was the case
here) that evidence was admitted without
objection. Butterick Pub. Co. v. Fisher, 203
Mass. 122, 89 N. E. 189, 133 Am. St. Rep.
283; Fairfield v. Lowry, 207 Mass. 352, 358,
93 N. E. 598. Whether the president of the
defendant company did or did not ask for a
"full release" was incompetent and of no

consequence,

The written agreement here in question recites that "a settlement having been reached between the trustees or receivers" of the four

case of a debt due the company for a sale
made by it the receiver collects a chose in
action of the company. The chose in action
is due under a contract made by the com-
pany subject to all equities by way of set-off
or otherwise which exists between the com-
pany and the debtor. In case of a company
debt the receiver sues in the name of the
company which was party to the contract un-
less the chose in action has been assigned to
him and he is allowed by the law of the fo-
rum to bring an action in his own name as as-
signee. But in case of a debt due for a sale
made by a receiver, the receiver is the party
to the contract of sale; the action for that
reason must be brought in his own name and
is not subject to any equities by way of
set-off or otherwise which could be set up by
the company. The difference between the
two is elementary and needs no citation of
We should not
authorities in its support.
have thought it necessary to explain the dis-
tinction at length had it not been that the
defendant's argument is founded upon a fail-
ure to recognize it.

The presiding judge should have instructed the jury that the debt here sued on was not covered by the release. In leaving that question to the jury the judge gave an instruction which was more favorable to the defendant than it was entitled to.

fendant. 99

companies (the Crystal Glass Company, the Riverside Glass Company, the Ohio Flint Glass Company and the Rochester Tumbler Works) and the defendant company, whereby the defendant company is to pay the receivers $2,306.17 and costs incurred by it, and [10, 11] There is one ground on which the the receivers are to pay their own costs "and exception to the refusal to direct a verdict to discharge said Mitchell Woodbury for the defendant would have had to be susCompany from any further obligations or tained had it not been waived by the deaccounts due to the above-named companies,' This writ was sued out by the the receivers acknowledge payment of $1,-"Rochester Tumbler Works, a corporation 306.17 and agree as to the payment of the duly organized under the laws of the state of Maine, which brings this action by Addison remaining $1,000 which had been trusteed. "Further obligations or accounts due to the the writ was amended "by striking out the “Further obligations or accounts due to the Thompson its trustee and receiver." Later above-named companies" includes all amounts due the four companies for sales made by words 'by Addison Thompson, its trustee and them or either of them, but it does not include sums due from sales made by the receivers for sales made by them.

[5-9] It did not appear at the trial for what reason the receivers here in question had been appointed receivers. But the fact that they were appointed receivers of itself means that they were not acting as agents of the company of which they were appointed receivers, or on its behalf alone. A receiver is appointed to preserve property the title to which is in litigation until it is determined to whom that property belongs, or in some cases (generally statutory ones) to wind up the affairs of an insolvent, reduce its property to cash and distribute it among its creditors. But whichever of the two be the nature of a particular receivership, money due for a sale by the company before the receivership and money due for a sale by the receiver are quite different in character. In

receiver,'

words ""by Addison Thompson and Harry S. and inserting in place thereof the Toynbee, its trustees and receivers."" That

is the proper writ for the collection of a debt due under a contract made by the defendant with the Rochester Tumbler Works. But it is not the proper writ in case it is sought to collect a debt due under the two contracts here in question, one made by the defendant with Thompson when sole receiver and the other by it with Thompson and Toynbee when joint receivers of the Rochester Tumbler Works. But the defendant company in its brief states that: "There is no dispute as to the prices charged or as to the receipt of the goods by the defendant. The sole defense was that the plaintiffs' claim had been discharged by an instrument in writing dated February 17, 1910." The objection to the form of the writ was thereby waived, and the entry must be:

Exceptions overruled.

Report from Superior Court, Essex Coun- trotyping plant." "Outside of its machinery, ty; Charles F. Jenny, Judge.

the whole lecture was written, but that afterwards on a second argument he granted it on the ground of breach of confidence." See Turner, V. C., in Morison v. Moat, 9 Hare,

fendant a lease of the second story, the
premises owned by him. Thereupon, on Oc-
tober 4, 1911, the defendant applied to the
agent of the trust company for a lease of the
first floor and basement, telling the agent | 241, 257.
"that he represented parties who were going
to take over the paper." "A few days later"
a written lease from October 2d (October 1st
being a Sunday) was delivered to the defend-
ant for a term not stated, and on October
31st the defendant gave the plaintiff notice
to quit on the following Friday, which was
November 3d.

Since then the doctrine has been applied in England in a number of cases. In Morison v. Moat, 9 Hare, 241, the defendant was enjoined from using a secret formula for compounding a medicine which had been disclosed to him, in violation of a contract made with the originator of the formula. In Tuck v. Priester, 19 Q. B. D. 629, the deThe findings already stated establish the fendant, who had been employed by the peculiar value which these premises had to the plaintiff to print two thousand copies of a defendant's employer or to any one carrying picture belonging to him, was enjoined from on the employer's business of publishing this selling further copies of it which he had newspaper. And it is evident from the facts surreptitiously taken. In Pollard v. Photofound by the judge who heard the case in graphic Co., 40 Ch. D. 345, a similar decithe superior court that the defendant realiz- sion was made; in that case the defendant ed that. It is found that "during the sum- printed for his own use further likenesses of mer after the interest had been defaulted, the plaintiff from a negative which he had the defendant went to various bondholders made when photographing the plaintiff in and endeavored to buy their bonds," and that the ordinary course of his business as a "he offered them 50 cents on the dollar photographer. In Helmore v. Smith, 30 Ch. therefor," and that "after obtaining the D. 449, a clerk was committed for contempt lease he went to various bondholders and offered them 25 cents on the dollar" for the same bonds. It is further found that "he stated to various persons that the person who had secured the lease would be the winner in the long run, and asked some of these persons if they were going to the funeral, meaning the funeral of the paper published by the Publishing Company.

It is not directly found as a fact, but it is the fair inference to be drawn from the facts found, that the defendant learned in the course or by reason of his employment of the peculiar value which these premises had for his employer. It was directly found (in effect) that knowledge of the fact that his employer was in arrears in payment of rent came to the defendant by reason of his employment. That fact however is a fact of secondary importance.

The doctrine invoked by the plaintiff in this suit had its origin in two decisions by Lord Eldon. In Yovatt v. Winward, 1 Jac. & W. 394, the defendant (formerly employed as a clerk by the plaintiff, who was a veterinary surgeon) was enjoined from using medicines compounded from the plaintiff's recipes which he (the defendant) had surreptitiously copied while in the plaintiff's employ. In Abernethy v. Hutchinson, 3 L. J. (O. S.) Ch. 209, the publication in the Lancet of lectures on surgery delivered by the plaintiff at St. Bartholomew's Hospital, which the defendants had obtained from the students attending the lectures, was enjoined. The ground on which Lord Eldon went in this case was subsequently stated by Turner, V. C., in these words: "I well remember that upon the first argument he refused to grant the injunction on the ground of copyright,

on its being shown that he had taken a copy of the customers of a business conducted by a receiver appointed by the court and that he had solicited their custom for a competing business which he had set up for himself. A similar decision as to the use of a list of the plaintiff's customers surreptitiously copied by a clerk was made in Robb v. Green, [1895] 2 Q. B. 1. In Merryweather v. Moore, [1892] 2 Ch. 518, a clerk was enjoined from communicating to a subsequent employer the details of machinery manufactured by his former employer, the plaintiff; and in Lamb v. Evans, [1893] 1 Ch. 218, the defendants, who were employed to secure advertisements for the plaintiff's Trades Directory, and who by the terms of their employment furnished at their own expense the blocks and materials necessary for producing the advertisements, were enjoined from using the blocks and materials so obtained in aid of a competing directory. For two other cases where the doctrine was applied see Tipping v. Clark, 2 Hare, 382, 393, and Kirchner v. Gruban, [1909] 1 Ch. 413, 422. In the latest of these cases, Kirchner v. Gruban, [1909] 1 Ch. 413, 422, Eve, J., states the doctrine of these cases in these words: "I think it is abundantly clear upon the authority of Robb v. Green, [1895] 2 Q. B. 1, that the real principle upon which the employé is restrained from making use of confidential information which he has gained in the employment of some other person is that there is in the contract of service subsisting between the employer and employé an implied contract on the part of the employé that he will not, after the service is determined, use information which he has gained while the service has been subsisting to the