116 A. 99 | N.H. | 1922
The defendant excepted to the exclusion of evidence tending to show what the plaintiff had represented his qualifications *276 and capacity to be. The exclusion is sought to be justified upon the ground that when the representation was made the parties were treating regarding the engagement of the plaintiff upon a profit-sharing basis, and that this plan was subsequently abandoned and contract of hire for wages was entered into. It would seem that the whole transaction was so intimately connected that any representations of the character of those charged could be found to relate to all the dealings between the parties. But if it be assumed that the negotiations for the profit-sharing scheme were wholly distinct from the subsequent contract of employment, the evidence was none the less admissible.
When the parties entered upon the last negotiations, which terminated in the contract of hire, the plaintiff knew that the defendant had theretofore been misinformed by him upon questions material to the contract they were about to make. It could be found also that he knew the defendant did not know of the falsity of his statements. In this situation the duty of the plaintiff to inform the defendant of the truth is entirely clear. The mere failure to disclose material facts "which the other did not know and could not learn" is sufficient evidence to warrant sending a case to the jury. Benoit v. Perkins,
The evidence was also admissible upon another ground which is urged by the defendant. As an aid to construing and applying contract, it is always permissible to show the facts surrounding the undertaking, including what was said in the preliminary negotiations. "Having themselves locked up the idea in the words, themselves must furnish the key to unlock it." 4 Wig. Ev., s. 2465. "The instrument to be interpreted, whatever may be its nature, should be read in the light of all the circumstances which may be supposed to have been present to the mind of its author when it was framed." Noyes v. Marston,
The discussion of the general subject in the numerous cases in which the principle has been applied in this jurisdiction make it abundantly clear that the mutual understanding of the parties to written contract, as to the sense in which they used the language of the writing, may be shown by their oral negotiations which preceded the written agreement. New England Box Co. v. Flint,
The precise question here presented does not appear to have been passed upon in this state. In Cordopatis v. Bakalopoulos,
There may be cases where the question whether the evidence tends to elucidate the language of the writing or whether, on the other hand, its sole tendency is to contradict the writing (Lancaster Jefferson Elec. Light Co. v. Jones,
The plaintiff's objection to the evidence upon the ground that the conversations in question related to a different contract (if well grounded in fact) has no application to this phase of the case. The question here is merely what the mutual understanding of the parties was as to the meaning of certain language. The evidence is received because it tends to show "that which was in the minds of the parties." Swett v. Shumway,
Nor does the fact that the plaintiff's real intent or understanding may have differed from the one he may have expressed by false statements to the defendant render the rule inapplicable. Knowing that the defendant accepted the language of the written contract in the sense with which the plaintiff's representations endowed it, the plaintiff would be bound to perform the contract precisely as he would have been if the common understanding had resulted from negotiations honestly conducted. 4 Wig. Ev., s. 2466.
As the verdict must be set aside because of the exclusion of material evidence, it is unnecessary to consider the plaintiff's exception to the order cutting down the award of damages to him.
Defendant's exception sustained; new trial.
All concurred.