Stillings v. Timmins

152 Mass. 147 | Mass. | 1890

W. Allen, J.

To prove the consideration for the defendants’ promise, which is not expressed in the writing, the plaintiff put in evidence proceedings of a meeting of abutters on Brighton Avenue and Massachusetts Avenue, organized for the purpose of securing changes in those avenues, and the extension of Commonwealth Avenue so as to include them. The plaintiff was one of a committee appointed by the meeting to further its objects. The defendants were abutters upon Brighton Avenue, and attended the meeting, and, with other abutters, signed the subscription paper in suit. The jury found, under instructions that were not objected to, that there was sufficient consideration for the defendants’ promise. The only question that arises is upon the exclusion of certain evidence offered by the defendants. The defendants offered to show that the object and purpose of their subscriptions were only to pay for land if it should be necessary to purchase it in order to widen Brighton Avenue, and that Brighton Avenue was widened without the purchase of any land. This evidence was excluded. It is contended that it goes to show the consideration of the defendants’ promise, and is competent to show a failure or want of consideration. We think that the evidence was properly excluded.

The consideration upon which the plaintiff relied, and which was proved, seems to have been his implied promise, or his acts, as representing the abutters as an officer or agent of their organized meeting, to carry out the purposes and objects of the meeting for which the subscriptions were made by individuals. The defendants would be bound by their subscriptions made in common with others for the common object, although their purpose was to assume a limited and conditional obligation. To give effect to that would be to change the written contract, not to show the consideration of it. Their written promise was to pay certain sums when the avenue should be laid out. The consideration of their promise, in common with that of the other subscribers, was that the plaintiff would act as one of the executive committee of the meeting, and apply the- money in accordance with its instructions, and to carry out its objects. The evidence offered by the defendants went to the promise itself, and not merely to the consideration of it.

As the evidence was rightly excluded, the instructions asked for, which assumed that the evidence was in the case, were properly refused. Exceptions overruled.