88 Mass. 553 | Mass. | 1863
The testimony of the plaintiff, that the understanding was, at the time he signed the bills of sale, that they were only executed to enable the defendant to give a good title when he should sell the mortgaged property, was not prejudicial to the defendant, because the defendant testified that such was also his own understanding. But the plaintiff was allowed, against the defendant’s objection, to testify further, that he signed them with the understanding that the notes described in the mortgage should first be paid, and the balance returned to the plaintiff. This was wholly inadmissible. The defendant testified that no such understanding was known to him ; and it does not appear that the plaintiff communicated it to any one. The understanding which one party to a contract has of its meaning is obviously not evidence in his own favor, and against the other party, when the effect of the contract is in controversy. The verdict must therefore be set aside, and a new trial granted. The other rulings and instructions to which exception was taken, do not seem to have been erroneous in any material particular.
The chief question on which the case depends, would appear to have been this: Under what contract or for what purpose did the defendant receive the bills of sale ? If to sell the property, and apply the surplus, after payment of the mortgage debt, to pay the debts of George C. Taft, the plaintiff had enabled George C. to make such a contract by intrusting him with the bills of sale. If, on the other hand, the understanding which
Exceptions sustained
