Where the subject matter of a contract relates to the
construction of a railroad in Massachusetts, and the defendant
resides there, and the contract was made there, and a suit on the
contract is brought there, the law of
Page 133 U. S. 424
Massachusetts is to govern in expounding and enforcing the
contract and in determining the rule of damages for a breach of
it.
Where a contract states that the purchasing price of its subject
matter is $15,000, and that that sum has been "this day advanced
and paid" therefor, it is competent for the vendor, in a suit by
him on the contract, to show that only $10,000 was paid, with a
view to recover the remaining $5,000.
The language of the contract is ambiguous, and does not show
actual prior or simultaneous payment.
Evidence of a promise by the defendant, as a part of the
consideration of the contract, to pay certain debts mentioned in it
which the plaintiff owed is admissible, and the refusal of the
defendant to pay those debts on demand was a breach of the
contract.
An agreement to "assume" a prior contract and to save the
plaintiff harmless from "all liability" by reason of certain other
contracts is broken by a failure to pay the parties to whom the
plaintiff was liable, and it is not necessary to a breach that the
plaintiff should show that he had first paid those parties.
The agreement is not merely one to indemnify the plaintiff from
damage arising out of his liability, but is an agreement to assume
his contracts and to discharge him from his liability.
Such agreement was a personal one on the part of the
defendant.
On the 23d of October, 1878, the following instrument in writing
was executed by Stephen C. Mills on the one part, and Stephen Dow
and Nathan P. Pratt on the other:
"Whereas Stephen C. Mills, of Stark, in the State of Maine, is
the contractor for the building of the Boston and Mystic Valley
Railroad Company's railroad bed, bridges, etc., etc., and whereas,
the said railroad company has agreed to purchase and cause to be
cancelled the said contract, but said company has found it
inconvenient or impossible to pay me the agreed price for such
purchase, and whereas Stephen Dow, of Woburn, and Nathan P. Pratt,
of Reading, have agreed to purchase of me the said contract in the
interest of said railroad company, and for the said company's
benefit and profit, and to receive of me an assignment of said
contract in trust for said company -- that is to say, as collateral
security for payment to them by said company of the sum of fifteen
thousand dollars, the purchasing price, and interest thereon at the
rate of six percentum per annum, for such time as the same shall
remain unpaid, which said sum of fifteen thousand dollars the
Page 133 U. S. 425
said Dow and Pratt have this day advanced and paid to said Mills
for said contract, and all sums that may hereafter become due
thereunder, and whereas, the said Mills has sublet some of the
work, as per contracts marked 'B,' 'C,' 'D,' 'E,' and hereto
annexed, with Hall and Burgess, J. M. Ellis, and Savage and McCabe,
and whereas, the said Dow and Pratt assume said contract in their
capacities as aforesaid, and whereas, by the terms of said contract
'A,' ten percent of the monthly estimate is retained in the hands
of the company; the said Dow and Pratt as aforesaid accept the
assignment of said contract with the understanding and agreement
that they will and shall well and truly save harmless the said
Mills from any and all liability by reason of said contracts, the
ten percent reserved, and any claim by reason of said Ellis, Hall
and Burgess, and McCabe agreements before mentioned: Now know all
men that I, Stephen C. Mills, of Stark, in the State of Maine, the
person named in the contract hereto annexed, marked 'A,' in
consideration of fifteen thousand dollars to me paid by Stephen
Dow, of Woburn, in the County of Middlesex and Commonwealth of
Massachusetts, and Nathan P. Pratt, of Reading, in said County of
Middlesex, in their capacity aforesaid, have assigned, and do
hereby assign, sell, convey, and set over to the said Dow and Pratt
as aforesaid, and their assigns, all my interest in the within and
before-mentioned contract marked 'A,' and every clause, article, or
thing therein contained, and I do hereby constitute and appoint
them, the said Dow and Pratt, trustees as aforesaid, my attorney or
attorneys, in my name, but to their own use as aforesaid, to take
all legal means which may be proper for the complete recovery and
enjoyment of the assigned premises, with power of substitution. In
witness whereof I have hereunto set my hand and seal this
twenty-third (23) day of October, A.D. 1878."
"S. C. MILLS & Co."
"STEPHEN C. MILLS [L. S.]"
"Signed, sealed, and delivered in the presence of"
"HENRY B. NOTTAGE"
"P. WEBSTER LOCHE"
Page 133 U. S. 426
"We, the said Stephen Dow and Nathan P. Pratt, hereby accept the
above assignment, and the conditions preceding the same, for the
purposes aforesaid."
"Witness:"
"STEPHEN DOW"
"NATHAN P. PRATT"
"P. WEBSTER LOCHE"
The contract of Mills with the Boston and Mystic Valley Railroad
Company, to build and equip the road of that company from
Somerville to Wilmington, was made on the 4th of May, 1878. On the
6th of May, 1878, the plaintiff, under the name of S. C. Mills and
Co., made a subcontract with H. C. Hall and J. H. Burgess, being
the Hall and Burgess named in the instrument of October 23, 1878,
to grade the roadbed of the railroad from Wilmington to Somerville.
The road had not been completed on the 23d of October, 1878. Dow
and Pratt were stockholders and directors in the company. Of the
$15,000 mentioned in the instrument of October 23, 1878, they paid
to Mills only $10,000. They did not pay any part of $11,048.08,
which was due to Hall and Burgess for work done under their
contract, partly before and partly after the instrument of October
23, 1878, was executed. Mills brought this suit against Dow and
Pratt, in the Circuit Court of the United States for the District
of Massachusetts, to recover those sums. Issue was joined by Dow.
Pratt did not appear, and was defaulted. At the trial before a
jury, the court directed a verdict for the defendant Dow, and a
judgment accordingly was entered, to review which the plaintiff has
brought a writ of error. Since the writ was brought, Dow has died
and his administrator has been substituted as defendant in error in
his stead.
Dow was President of the railroad company, and as such executed
the contract between the company and Mills for the construction and
equipment of the road. The subcontractors named in the instrument
of October 23, 1878, continued work on the road under their
contracts up to the middle of December, 1878, and furnished the
labor and materials set forth in the declaration, and in the
accounts annexed thereto, so that there was a balance exceeding
$6,000 due from Mills to Hall
Page 133 U. S. 427
and Burgess, partly for work done prior to October 23, 1878, and
partly for work done subsequently to that date. Dow was informed of
the amount so due to the subcontractors and that the same had never
been paid. The bill of exceptions, after stating the foregoing
facts, sets forth that the plaintiff offered to show by Hall, for
the purpose of proving an independent oral contract based on an
alleged liability of Dow as stockholder, that Dow repeatedly
promised Hall, in 1879 and subsequently, that he would pay the
amount claimed to be due to Hall and Burgess, but the court refused
to admit the evidence at that stage of the case on the ground that
there was no evidence of a consideration for the promise and that
the liability, and the fact that Dow was a stockholder, must first
be shown; that the plaintiff offered to show by his own evidence
that the consideration of the instrument of October 23, 1878, was
the payment of $15,000; that the defendants promised to pay him
that sum as such consideration, and had paid only $10,000 of it,
the plaintiff claiming that by the terms of the instrument, the
defendants were bound to pay the whole of such consideration and
that, on proof that the consideration was $15,000 and was partially
unpaid, he would be entitled to recover; that the court ruled that
the inquiry was irrelevant on the pleadings and proofs as they then
stood; that the plaintiff offered further to show that, as a part
of the consideration of the instrument, the defendants promised to
pay the debts the plaintiff owed to Hall and others named in the
instrument, and that the court refused to admit the evidence.
The bill of exceptions states also that there was evidence
tending to show that the defendants were stockholders and directors
of the company and Dow was its President from May 1, 1878, to June
1, 1879; that Hall had authority from the plaintiff to collect from
the defendants the amounts due to the subcontractors; that Dow at
the request of the plaintiff, paid to one or more of the
subcontractors, subsequently to October 23, 1878, the amount due
them for work done on the road, and had also paid to the plaintiff
the amount of a judgment recovered against the latter by Savage and
McCabe, in
Page 133 U. S. 428
a suit brought by them subsequently to October 23, 1878, for
work done by them under their subcontract, which amount the
plaintiff never paid to Savage and McCabe, and no claim is made for
it in this suit; that before this suit was brought, the
subcontractors demanded their pay from the plaintiff, showing him a
statement of their account, and also made a demand on the
defendants, and the plaintiff made a like demand on them; that as
between the plaintiff and the subcontractors, there was no dispute
as to the amount due; that the company voted to stop the work of
construction on the road about the middle of December, 1878, and
never resumed the work of construction after that date; that Hall
and Burgess did not complete their contract within the time
stipulated in it, for the reason, among others, that the company
did not meet its payments and never secured the right of way for
the portion not constructed by it, and that no evidence was
introduced by the plaintiff that he had paid any portion of the
sums due the subcontractors named in the instrument of October 23,
1878. The plaintiff having closed his case, the defendant Dow
contended that the plaintiff could not recover without first
showing some actual payment or injury other than his liability to
Hall and Burgess, so due and made known to the defendants, and that
the same had not been paid. The court ruled that there was no
competent evidence to sustain the plaintiff's case, and directed a
verdict for the defendant Dow.
The bill of exceptions further states that the plaintiff duly
excepted at the trial to such rullings, refusals to rule, and
direction of the court.
Page 133 U. S. 430
MR. JUSTICE BLATCHFORD, after stating the case as above,
delivered the opinion of the Court.
The plaintiff alleges as error (1) the refusal of the court to
admit the evidence offered as to the consideration of $15,000,
Page 133 U. S. 431
as to the promise to pay the balance of it, and as to the
promise to pay the debts due to Hall and Burgess; (2) the ruling
that the plaintiff could not recover without showing some actual
payment or injury, other than his liability to Hall and Burgess so
due and made known to the defendants; (3) the ruling that there was
no competent evidence to sustain the plaintiff's case, and (4) the
withdrawal of the case from the jury, and the direction of a
verdict for the defendant Dow.
As the subject matter of the instrument of October 23, 1878, was
in Massachusetts, and the defendant Dow was a resident there, and
the contract was made there, and the suit was brought there, the
law of that state is to govern in expounding and enforcing the
contract, and in determining the rule of damages for a breach of
it.
It is contended by the defendant that the instrument contains an
admission of the receipt of the entire $15,000, and the question on
this branch of the case is whether the plaintiff is precluded from
showing the true state of facts. It is well settled in
Massachusetts that a recital in a deed, acknowledging payment of
the consideration stated, is only
prima facie proof, and
is subject to be controlled or rebutted by other evidence.
Paige v. Sherman, 6 Gray 511, 513;
Wilkinson v.
Scott, 17 Mass. 249;
Carr v. Dooley, 119 Mass. 294,
296.
Independently of this, the expression in the instrument which is
claimed to be an acknowledgment of the receipt of the $15,000,
namely, "which said sum of fifteen thousand dollars the said Dow
and Pratt have this day advanced and paid to said Mills," is
ambiguous, and does not show actual prior or simultaneous payment.
Goldshede v. Swan, 1 Exch. 154.
So too the evidence of a promise by the defendants, as a part of
the consideration of the instrument, to pay the debts which the
plaintiff owed to Hall and others named in it was admissible, and
the refusal of the defendants to pay those debts on demand was a
breach of their contract.
Clark v. Deshon, 12 Cush. 589,
591.
The issue being whether the consideration had been paid, and
whether the obligation of the defendants was broken, it was
competent for the plaintiff to show by parol that after
Page 133 U. S. 432
Hall and Burgess had finished their work under their
subcontract, they stated their account to the plaintiff, and
demanded payment from him; that he notified the defendant, and made
demand on them, and that they neglected to pay. Such demand, and a
neglect on their part to pay, tended to support the case of the
plaintiff.
The balance due by the plaintiff to Hall and Burgess was
$11,048.08, with interest from January 1, 1879, and that was the
amount of the liability of the plaintiff to them under his contract
with them. The agreement of the defendants, in the instrument of
October 23, 1878, is that they assume the contract between the
plaintiff and the company, and that they will well and truly save
the plaintiff harmless from any and all liability by reason of his
contracts with Hall and Burgess, Ellis, and Savage and McCabe, "the
ten percent reserved," and any claim by reason of such
contracts.
The agreement to assume the contract, in connection with the
further agreement to save the plaintiff harmless from liability,
was broken by a failure to pay the parties to whom the plaintiff
was liable, and it was not necessary to a breach that the plaintiff
should show that he had first paid those parties.
Braman v.
Dowse, 12 Cush. 227;
Locke v. Homer, 131 Mass. 93;
Drury v. Tremont Improvement Co., 13 Allen 168, 171;
Stewart v. Clark, 11 Met. 384;
Preble v. Baldwin,
6 Cush. 549;
Smith v. Pond, 11 Gray 234;
Paper Stock
Co. v. Boston Disinfecting Co., 147 Mass. 318.
By the instrument in question, the defendants took the place of
the plaintiff and became, after the instrument was executed,
principals in the work of constructing the railroad, and their
acceptance of the assignment, and the conditions preceding it,
included the subcontracts, and what was due and to become due upon
them. The contract is not merely one to indemnify the plaintiff
from damage arising out of his liability, but is an agreement to
assume his contracts and to discharge him from his liability.
Gilbert v. Wiman, 1 Comstock 550;
Noble v.
Arnold, 23 Ohio St. 264, 271;
Carr v. Roberts, 5 B.
and Ad. 78;
Chase v. Hinman, 8 Wend. 452;
Rockfeller
v. Donnelly, 8 Cowen 623;
Randall v. Roper, 27
Law
Page 133 U. S. 433
J.N.S.Q.B. 266;
Warwick v. Richardson, 10 M. and W.
284;
Port v. Jackson, 17 Johns. 239;
Wicker v.
Hoppock, 6 Wall. 94;
Lathrop v. Atwood, 21
Conn. 117, 125. The case is not open to the objection that the
plaintiff endeavored to extend and enlarge by parol the provisions
of a written instrument under the guise of proving its
consideration, and the cases on that subject do not apply.
Although the instrument in question states that the defendants
have agreed to receive from the plaintiff an assignment of the
plaintiff's contract with the railroad company "in trust for said
company;" that the defendants "assume said contract in their
capacities aforesaid;" that they have paid the $15,000 "in their
capacity aforesaid;" and the assignment is made to them "as
aforesaid;" and that the plaintiff appoints them, "trustees as
aforesaid," his attorneys, and although they "as aforesaid accept
the assignment," their agreement to save the plaintiff harmless
from any and all liability by reason of the contracts named is an
absolute personal agreement on their part.
The judgment is reversed, and the case is remanded to the
circuit court, with a direction to award a new trial.