Brown v. Fales, 139 Mass. 21

Brown v. Fales

139 Mass. 21 | Mass. | 1885

C. Allen, J.

Where the language of a contract is equivocal in itself, or is made so by proof of extrinsic circumstances, so that it is susceptible of more than one construction, oral evidence is competent to show the situation of the parties, and to enable the court to be surrounded by the same circumstances as the parties were, and to look at the contract in the same light as they did, *27and thus to aid the court in applying and construing the language of the contract; subject of course to this limitation, that the meaning thus arrived at must be consistent with a meaning which the words themselves bear. Smith v. Faulkner, 12 Gray, 251, 255. Eaton v. Smith, 20 Pick. 150. Russell v. Lathrop, 117 Mass. 424, 426. Shore v. Wilson, 9 Cl. & Fin. 355, 540, 542, 543, 565. 1 Chit. Con. (11th Am. ed.) 156. In the present case, the court, without objection, admitted such evidence, which, if believed, was sufficient to warrant the jury in finding as they did in answer to the second question submitted to them. It is therefore now to be assumed as a fact, that the defendant executed the agreement in suit under the belief that she was simply receiving back her own identical shares, which she owned in 1875, and which had been found by the plaintiff, though at the time in question represented by a certificate of a later date than the original. It is moreover to be added, that this belief of the defendant was induced by information given to her by the plaintiff. The probability of this is not before us for consideration, nor should we be justified in failing to give effect to it, as a fact fully established by proof. The question then is, What, in the light of this fact, is the true meaning of the defendant’s words, “ I agree to hold her harmless in any manner from loss arising out of her above action ” ? The view of the plaintiff is, that the words mean the action which she had actually performed, namely, using the funds of her husband’s estate for the purchase of new shares, and delivering the same to the defendant. But we think the words mean the action which the defendant believed that the plaintiff had performed, and which, upon the jury’s answer, it must now be assumed that the plaintiff knew that the defendant believed had been performed. This was the understanding which the defendant must have had of the contract which she made; it was also the understanding which the plaintiff knew that the defendant had of it. This understanding is also consistent with the words used. The result is, that the plaintiff was not entitled to recover, as the loss sustained by the plaintiff was not embraced within the defendant’s contract. The author-ties cited and relied on by the plaintiff, to the effect that the defendant could only avoid her contract by restoring or offering to restore the plaintiff to her former position, that is, by *28surrendering the shares received by her, are applicable to a case where a party seeks to rescind a contract. In the present case, the defendant’s contract is not rescinded; it is construed. Besides, we do not see that this question was raised at the trial.

We can see no error in the admission of the evidence showing the allowance of a claim by the defendant against the estate of the plaintiff’s intestate. The fact was admissible to correct the evidence put in by the plaintiff; and, if any improper use was attempted to be made of the fact, the plaintiff should have asked suitable instructions, limiting its effect.

The plaintiff further says, that no legal consideration moved to her for her purchase of said stock for the defendant, and she “ submits to the court whether or not, considering that both parties knew of the insolvency before and at the time of their said transactions, and that this action is brought by the plaintiff in her individual capacity, not as administratrix, the latter term being merely descriptio personce, the plaintiff may be entitled to recover upon the third or fourth count in the declaration.” No argument is presented in favor óf the right thus suggested; and we do not think there was any such implied contract on the part of the defendant. In the first place, the purchase of the shares was not by the defendants express or implied request, which must have been shown to sustain the third court. Mansfield v. Edwards, 136 Mass. 15, 19. And besides, no contract on the part of the defendant was implied, in addition to her express contract in writing, relating to the same subject matter. 1 Chit. Con. (11th Am. ed.) 89. Exceptions overruled.