6 Whart. 79 | Pa. | 1841
The opinion of the court was delivered by
Three questions appear to embrace all that is material in the errors assigned. First; can .this action be maintained in the names of the plaintiffs below, by showing that the written agreement, given in evidence on the trial, was made by the defendant there, with Thomas & Martin, for the benefit of the plaintiffs below; and that Thomas & Martin were employed by them to obtain from the defendant the engagement contained in said agreement on his part to be performed, for the breach of which this action has been instituted 1 Second; supposing the plaintiffs below to have such an interest in the engagement of the defendant, as to enable
The first question will, it is conceived, embrace all the bills of exception taken to the opinion of the court, -admitting the evidence objected to by the defendant below: for, if the existence of the facts which the evidence was offered to prove, will entitle the plaintiffs below to maintain the action, it would seem to follow clearly, that the evidence was admissible. This, then, would leave nothing in regard to the evidence to be decided on, excepting its competency to establish the facts; which will receive a passing notice.
Though the engagement of the defendant is reduced into writing, yet it is considered in law nothing more than a parol agreement; that is, the same as if it had been made verbally, without writing. And where such an agreement has in fact been made for the benefit of a third person, whose name is not mentioned in it, I apprehend it has never been doubted that parol evidence was admissible to show that the fact was so; as also the name or names of persons for whose benefit it was intended. It is every day’s practice to admit parol evidence for the purpose of establishing a use, and showing who is the beneficiary, where it does not appear upon the face, of the instrument containing the grant or creating the obligation: and this may be done even where the instrument is under seal, unless it relates to lands, and the admission of such evidence should be thought to contravene the act of assembly against frauds and perjuries. It is a great misapprehension to suppose that the admission of parol evidence for such purpose trenches upon the general rule which prohibits the admission of such evidence for the purpose of altering a written agreement, by either adding to or taking any thing from it. To prove, by such evidence, the interest of a third person in the written agreement, does not in general vary or contradict it in any respect whatever; but is effected by proving another agreement or understanding between the beneficiary and one of the parties to the written instrument; which is perfectly reconcilable therewith, or at most, never prejudices the rights or increases the obligation of the other party thereto. So far, therefore, as the evidence offered by the plaintiffs below, tended to prove their interest in the contract made with the defendant by Thomas & Martin, by showing that it was made by Thomas & Martin, under the authority of the plaintiffs, and for their benefit, it was clearly admissible. But Whether the
(Signed) Samuel Anderson.”
New York, 15th July, 1791.”
On the trial of the cause, the plaintiffs produced a correspondence between Anderson and the defendants in relation to the contract after it was made, and then offered Anderson himself as a witness, to prove that he had received a verbal authority to make the contract for the defendant; that he had accordingly executed the foregoing; and that there had been a punctual compliance with the stipulations on the part of the plaintiffs. The defendant objected that Anderson was not competent to prove his own authority; and that he was interested in the question, as he had an action actually depending for his own commission on making the contract. The court, however, overruled this objection, saying, “ that he was competent to prove every part of the transaction; that he was not interested in the event of the suit; nor could the verdict, in that action, be given in evidence upon the trial of the action for his commission.” It was also objected then that the written contract was variant from the one declared on, inasmuch as the written contract was to deliver to J. R. Livingston only, but the action was in the names of'Brockholst and J. R. Livingston; which was also overruled by the court, who said the objection to the form of the action ought not to prevail; that the contract was proved by the testimony of Anderson; and the written paper was merely corroborative; that it was understood at the time of making the contract, that Mr. Brockholst and J. R. Livingston were jointly concerned; and that of course it was made for their joint benefit. This case would seem to meet and to overrule the most, if not all, of the exceptions taken to the opinion of the court below, admitting evidence, and likewise to the charge given to the jury in the case now under consideration. It shows, first, That the written • engagement of the defendant below was properly admitted in evidence. Second, That the conversation between the defendant and Thomas & Martin, before the contract was entered into, was rightly admitted, for the purpose of showing that the defendant was informed by Thomas & Martin, that it was sought to
Having shown that the interest and connection, which it was proved, the plaintiffs had with the contract, made with the defendant by Thomas & Martin, were such as to enable them to maintain
Then as to the third question. Did the court err in directing the jury that, “as he (the defendant) alone was cognizant of what he really made, the burthen of proof, on that point, was thrown upon him; and in the absence of all explanation, the jury would be justified in assuming that 1000 barrels were manufactured: if a small quantity be shown to have been all that was manufactured, then the actual quantity will be assumed by the jury 1” This action was commenced a month and twenty days before the expiration of the year; but probably after, that portion of the year, most favourable for making starch, had passed by; and when the defendant might possibly have manufactured 1000 barrels of it. It must be presumed that he knew the quantity which he had made within the year, anterior to the commencement of the action, and that he could have shown on the trial, had he pleased, what it was; a thing which it would have been difficult, if not impossible, for the plaintiffs to
We also think that the court was correct in the instruction given to the jury in regard to the price of wheat. If the change in the price of that article created and placed any difficulty in the way of the defendant’s fulfilling his contract, it certainly rested with him to show it. But if he did not choose to do so, no presumption in regard to it could be made in his favour; on the contrary, we think the jury were-at liberty to presume most strongly against him, keeping within the limits of the contract and the evidence on that point before them. The prosperity and peace of society depends' greatly upon an honest and faithful observance of contracts: the individual, therefore, who wilfully refuses to fulfil his contract, when able to do. so, has no claim to favour at the hands of a jury when brought before them for a breach of it. If, however, he alleges any extenuating circumstances, he must make proof of them, otherwise his allegation ought to be disregarded. The judgment is affirmed.
Judgment affirmed.