Contract, Consideration, Validity. Evidence, Extrinsic affecting writings. Practice, Civil, Exceptions. Words, "Released."
Where an instrument in writing in the form of a bond to pay money upon the performance of a condition is not under seal and is stated to be "in consideration of one dollar and other valuable consideration hereinafter named" and no other consideration is named thereafter in the instrument, it may be shown by oral evidence that there was no consideration or that the consideration was an illegal one, or that the money was to become payable only upon the performance of a promise which has not been performed.
An agreement to procure "straw" bail for a person under arrest and when this is obtained to have him leave the State is a fraud on the court in which such bail is to be furnished, and a promise to pay money for which this is part of the consideration cannot be enforced.
An action of contract was brought on the following instrument in writing, not under seal: "In consideration of one dollar and other valuable consideration hereinafter named, I, G. [the defendant], agree to pay to W. $250 in cash, upon the following conditions: Whereas D. is now under bond in the criminal court for the sum of $800, and the said G. is surety on said bond, or has a deposit of $800 as surety; now when said G. is released or said bond released upon said deposit, then said sum of $250 shall become due and payable, and I agree to pay said sum on demand to said W. Witness my hand and seal this twentieth day of January, 1904." The defendant, who was a friend of D. and had made the deposit of $800 from his own money, testified that he was asked by the plaintiff to sign the instrument, that he asked a brother of D. whether it was all right, and, receiving an affirmative answer, signed it, that nothing was said to him before signing the agreement and he remembered nothing which was said after signing. Against the objection of the plaintiff, the defendant was allowed to testify that "he was to pay the plaintiff $250 when he got his money." Held, that this evidence might have been admitted, either to show that the making by the plaintiff of such an arrangement respecting bail as would enable the defendant to get his $800 was a condition precedent of any obligation on the part of the defendant to pay the $250 and that the instrument was not to become operative until this condition was performed, or, in view of the defendant's testimony that no conversation took place between the plaintiff and himself at the time of signing the agreement, to show the substance of a subsequent conference between the plaintiff and the defendant resulting in a modification of the instrument in writing, and that on either ground of admission the evidence was not in contradiction of the writing.
One G. signed an agreement in writing "to pay to W. $250 in cash upon the following conditions: Whereas D. is now under bond in the criminal court for the sum of $800 and the said G. is surety on said bond, or has a deposit of $800 as surety; now when said G. is released or said bond released upon said deposit, then said sum of $250 shall become due and payable." In an action on this agreement there was conflicting evidence as to the circumstances and conditions under which the agreement was signed by the defendant. It appeared that D. surrendered himself, and the deposit of $800 was about to be returned to the defendant, but that the bail of D., after having been raised in amount, again was fixed by the judge at $800 and that that sum of money originally deposited by the defendant remained in the hands of the clerk of the court and was treated as deposited anew. The plaintiff asked the presiding judge to rule that as matter of law the $800 was released by the surrender of D. as shown by the evidence. The judge refused to give this ruling and instructed the jury that it was a question of fact for them to decide whether the $800 in the hands of the clerk of the court was released by the surrender of D. in the manner disclosed by the evidence. Held, that the refusal of the plaintiff's request involving the meaning of the word "released" was right, and that the instruction given by the judge leaving the question for determination by the jury was sufficiently favorable to the plaintiff.
One G. signed an agreement in writing "to pay to W. $250 in cash upon the following conditions: Whereas D. is now under bond in the criminal court for the sum of $800 and the said G. is surety on said bond, or has a deposit of $800 as surety; now when said G. is released or said bond released upon said deposit, then said sum of $250 shall become due and payable." In an action on this agreement it appeared that G., the defendant, was a friend of D. and had made the deposit of $800 from his own money, that the plaintiff procured two men who agreed to become sureties for D., that D. surrendered himself to the court, and the clerk of the court took from D. a receipt for the $800 and was ready to pay over that sum of money to the person entitled to it, whereupon the judge increased the amount of the bail to $2,000 and the two men proposed as sureties declined to be sureties for that sum and retired, that D., being taken in custody, signified his desire to re-deposit the $800, that thereupon the judge reduced the bail to the former sum of $800 and D. re-deposited it, a record being made of that fact and the money having remained all the time in the hands of the clerk, and that D. was allowed to go on his own recognizance. The defendant introduced evidence tending to show that the consideration for the agreement in writing was that the plaintiff should procure effectual bail, and that the defendant thereby should be enabled to get his $800. The plaintiff contended that all he agreed to do was to procure bail for $800, that his contract was performed when he procured two sureties sufficient for that amount, and that under the agreement the $250 was due to him from the defendant irrespective of the fact that the amount of the bail had been raised by order of the court. The judge instructed the jury that it was for them to determine what kind of bail it was which the plaintiff agreed to furnish, that they had a right to consider all the circumstances attending the transaction to ascertain the real consideration of the defendant's agreement, and, if they found that the plaintiff had not performed what he agreed to do, they should find for the defendant. The jury found for the defendant. On exceptions by the plaintiff, it was held, that the instructions of the trial judge were right.
RUGG, J.
The agreement signed by the defendant, upon which this action is brought, is not under seal, and expresses the consideration in the conventional phrase, "one dollar and other valuable consideration." The words, "hereinafter named" come immediately after, but they are surplusage, as no further consideration is stated, although there follows a statement of the condition, upon the happening of which the money shall become payable. This is a definition of the time when the money shall become due and payable, rather than an amplification of the consideration. For aught that appears upon the paper, the defendant's agreement may have been to pay to the plaintiff an indebtedness, not of himself but of X., amounting to $250, the moment of payment being fixed by the time when Y., who had been employed for the purpose, should procure an effectual release of the defendant's money deposited in lieu of bail for Alfred M. Day. Under these circumstances it was permissible to show by oral evidence what was the actual inducement for the agreement of the defendant, or, the agreement not being under seal, that there was no consideration. Weed v. Jewett, 2 Met. 602. Clark v. Deshon, 12 Cush. 589. Snow v. Alley, 156 Mass. 193. Snow v. Alley, 151 Mass. 14. Goward v. Waters, 98 Mass. 596. Carr v. Dooley, 119 Mass. 294. Graffam v. Pierce, 143 Mass. 386. Howe v. Walker, 4 Gray, 318. Cardinal v. Hadley, 158 Mass. 352. Galvin v. Boston Elevated Railway, 180 Mass. 587. Drew v. Wiswall, 183 Mass. 554. Under this well established rule the evidence of Charles H. Day, as to what in fact the plaintiff promised to Greer that he would do in return for the defendant's signature to the agreement, was admissible. It did not tend to contradict the writing, but merely to show the conditions, which were first to be performed by the plaintiff, before the promise of the defendant, expressed in the writing, should become operative. Upon the same principle, the testimony of Alfred M. Day was competent. The effect of his evidence was to show that a part of the consideration was the agreement of the plaintiff to procure "straw" bail. If this was true, it showed conduct grossly unprofessional, a fraud upon the court, and was such an illegal undertaking on the part of the plaintiff as to taint the entire agreement and render it unenforceable. Taylor v. Jaques, 106 Mass. 291. Bishop v. Palmer, 146 Mass. 469. Both the want of consideration and the illegality of the matter of agreement were seasonably pleaded by the defendant, and the proffered evidence from the two Days bore upon the issues.
With considerable hesitation, we are brought to the conclusion that the testimony of the defendant, that "he was to pay the plaintiff two hundred and fifty dollars when he got his money" was admissible, either on the ground of stating in substance that the consideration for the agreement was that, as a condition precedent to any obligation on the part of the defendant, the plaintiff was to make such arrangements respecting bail for Charles H. Day, as would enable the defendant to get his money, or upon the ground, in view of his previous testimony that no conversation took place between the plaintiff and himself at the time of signing the agreement, that this may have been the substance of a subsequent conference between the plaintiff and the defendant, resulting in a modification or extension of the written instrument. The evidence also may have been admissible as showing the existence of a condition as a part of the consideration, upon the occurrence of which alone the agreement should become operative. Upon this view the conversation would not be in contradiction of the writing but in pursuance of the original purpose. Wilson v. Powers, 131 Mass. 539. Rackemann v. Riverbank Improvement Co. 167 Mass. 1. If these different views involve an assumption of conflicting evidence on the part of the defendant, the weighing of it and ascertaining where the truth lay was the province of the jury. It seems more reasonable to interpret the evidence in this way than to assume that the trial court violated so elementary a principle of law as to permit the defendant to give his interpretation of the words written in the agreement.
The first, second and fourth prayers for instructions presented by the plaintiff were properly refused. The first omitted all reference to the contention that the consideration had failed and was illegal, nor does it refer to the defendant, and therefore could not have been given. The second prayer required the judge to direct a verdict for the plaintiff, which is so obviously untenable as not to call for discussion. The fourth asked the judge to make a ruling as to the abstract meaning of the word "released," wholly apart from the connection in which the jury might find that it was used in the light of the testimony from the defence as to the consideration for the agreement. The court could not have been required to do this.
Exception also was taken to the ruling that it was a question of fact for the jury to decide, whether the $800 in Mr. Manning's hands was released by the surrender of Alfred M. Day in the manner disclosed by the evidence. This, however, was a mere paraphrase and amplification of the third prayer, which at the request of the plaintiff the judge had given. It does not lie in the mouth of a party to question the correctness of the substance of a ruling, which has been given at his own importunity. But upon broader considerations the ruling was refused properly. This belongs to the class of cases where the sense in which a word is used in a contract may be a question of fact in view of all the circumstances. Oral evidence is not admissible to contradict or vary the terms of the written contract, but the situation and all the circumstances of all the parties, and the condition of the subject with which they are dealing, may be shown in order to properly apply the contract to the matters to which it relates. When there is conflicting evidence respecting these circumstances and conditions, then a proper case arises for the jury. The first relations between the plaintiff and the defendant apparently occurred when the agreement was signed. There was no consideration for the contract other than the agreement on the part of the plaintiff to do something further than what he had done already. But it required nothing to be done by the plaintiff to secure the release of the money by the surrender of Alfred M. Day into court. That was something he could do of his own volition, without the assistance of the plaintiff. No contention was made that a part of the service, which the plaintiff agreed to render, was the convincing of Alfred M. Day that he ought to surrender himself. It was at least sufficiently favorable to the plaintiff to leave the question for the determination of the jury. Smith v. Vose Piano Co. 194 Mass. 193. Stoope v. Smith, 100 Mass. 63. Miller v. Stevens, 100 Mass. 518. Keller v. Webb, 125 Mass. 88. Proctor v. Hartigan, 139 Mass. 554; S.C. 143 Mass. 462. New England Dressed Meat Wool Co. v. Standard Worsted Co. 165 Mass. 328, 332. Sargent v. Adams, 3 Gray, 72. Hebb v. Welsh, 185 Mass. 335. Buffington v. McNally, 192 Mass. 198. Bradford v. Manley, 13 Mass. 139. Weston v. Boston Maine Railroad, 190 Mass. 298. MacDonald v. Longbottom, 28 L.J.Q.B. 293; S.C. 29 L.J.Q.B. 256.
Nor is any error shown in the other portion of the charge, to which exception was taken. The contract was open to explanation respecting the consideration. It was a fair inference from the testimony produced in behalf of the defendant that the consideration for the agreement was that the plaintiff should procure effectual bail, and that Greer should thereby be enabled to get his money. The contention of the plaintiff was that all that he agreed to do was to procure bail for $800, and that his contract was performed when he procured two sureties sufficient for this amount and he was entitled to enforce his contract against the defendant, in spite of the fact that the amount of the bail subsequently was raised by order of the court. In passing upon these two conflicting lines of evidence, the jury were correctly instructed that they had a right to consider all the circumstances attending upon the transaction in enabling them to ascertain the real consideration.
Exceptions overruled.