Whitcomb v. Whitcomb, 217 Mass. 558

217 Mass. 558 | Mass. | 1914

Bealet, J.

The defendant having admitted the making of the contract, on which after deducting payments a balance remained due, unless it had been mutually rescinded, the only issue tried and submitted to the jury was the question of rescission, with the burden on the plaintiff of proving an enforceable agreement. Graham v. Middleby, 185 Mass. 349.

The testator and promisor was the plaintiff’s father, and their business and paternal and filial relations in controversy range over a period of more than five years, ending only with the father’s death. The undisputed testimony shows that from time to time the testator had furnished to the plaintiff or on his account, exclusive of the first four instalments accruing under the contract, various sums of money exceeding in the aggregate much more than the balance alleged to be due. But as these amounts are conceded to have been paid or advanced either as loans or as gifts when the plaintiff had fallen into necessitous circumstances, the defendant relied upon the general course of dealing for the entire period shown by the plaintiff’s testimony, and certain letters which passed between father and son, as being wholly inconsistent with the claim, that at the testator’s death the contract was binding, and as affording sufficient evidence to warrant the inference by the jury that it had been mutually abrogated or cancelled. It does not seem to have been denied, the plaintiff indeed admitted, that after the date of the contract and after his severance from the company in whose management in some form the testator seems to have exerted a controlling influence, he fell into distress and solicited and received pecuniary assistance.

The record is apparently bare of any direct evidence of a mutual understanding to do away with the contract either before or after maturity. Its abrogation could be established only from evidence illustrative of the conduct of the parties, from which their intention and purpose might be gathered. The jury from their common knowledge and experience as men of affairs would have been warranted in finding that ordinarily the plaintiff would not have asked for, and obtained, his father’s help where the gifts bestowed often were too small to supply adequately his immediate needs, if he had the unqualified right to insist upon and to enforce payment of an amount more than sufficient for his relief. Cogswell v. Hall, 185 Mass. 455, 457, 458. It is manifest that the circumstances under which the parties dealt could be shown by their correspondence, and the letters introduced in evidence without objection were competent for this purpose. The jury were to determine upon all the evidence, both oral and in writing, whether the plaintiff, as he testified, made demands for payment which do not appear in the correspondence, or whether, read in the light of his situation, the letters substantially outline all of their actual financial transactions. American Malting Co. v. Souther Brewing Co. 194 Mass. 89, 95. Brewer v. Casey, 196 Mass. 384, 388. We are unable, upon a careful perusal, to distinguish any material difference in relevancy of proof between these letters and certain of the letters to the exclusion of which the defendant excepted. The plaintiff’s own testimony sufficiently shows that while living in Central Valley, New York, money had been sent for his support, and the letter of the testator of July 23, 1906, referring to further provision for his son for “the coming season,” as well as the letter of March 2, 1906, the jury could find were in response to the plaintiff’s previous solicitations or in recognition of understood relations between them. These letters were admissible. The excluded portion of the letter of the plaintiff of November 16, 1906, also should have been admitted. It states the plaintiff’s financial situation, from which the jury could infer that he must have had in mind his assets and liabilities, yet no mention is made of any debt due from the testator, and it closes with an acknowledgment of checks'representing gifts or loans previously received.

The testator’s letter of October 24, 1902, and the portion in brackets of his letter to one Burr, were excluded properly. The transactions referred to in the first letter cannot be said, even in a remote degree, to have any reference to the plaintiff’s inability to support himself. It is not contended that at this period he had become dependent upon the testator for the means of subsistence. The statement in the letter to Burr, that the agreements with the plaintiff had been abrogated, even if the contract in question may have been included,— a matter of much doubt,— is only an expression of opinion by which the plaintiff would not be bound. Brightman v. Buffinton, 184 Mass. 401. Parrot v. Mexican Central Railway, 207 Mass. 184.

The will and codicil also were inadmissible. The* cause of action rests upon a contract in writing and not upon an oral promise of the testator. R. L. c. 175, § 67. Tripp v. Macomber, 187 Mass. 109, 113. Nor can the testamentary provisions for the plaintiff be considered declarations of a deceased person, under R. L. c. 175, § 66. O’Driscoll v. Lynn & Boston Railroad, 180 Mass. 187. Randall v. Claflin, 194 Mass. 560. If the testator had been living it would not have been competent for him to have given evidence of the disposition of his estate, or the manner in which the plaintiff’s share to be held in trust should be ascertained and the income for life paid to him.

It is, however, urged by the plaintiff that, even if error appears, the evidence excluded should be regarded as cumulative in character and hence its exclusion was discretionary with the presiding judge. Parker v. Hardy, 24 Pick. 246, 248. Bradish v. State, 35 Vt. 452, 456. Wigmore on Ev. § 1907. While subjected to an exhaustive cross-examination in which he seems to have fully and unequivocally disclosed everything which had taken place, the plaintiff testified in redirect examination and in explanation of the admitted letters, that because he had to obtain funds in any way he could to support himself and family he had repeatedly asked his father for assistance, although he still considered the contract “was good,” and that after making á demaud on two occasions for payment of what remained due, and payment having been refused, he again, from sheer necessity, continued to solicit funds throughout the time shown by the letters in evidence. The letter of March 2, 1906, may be said to be of the same general tenor as the plaintiff’s admissions in the other letters. Its exclusion would not be sufficient to set aside the verdict. Gardner v. Mitchell, 6 Pick. 114.

But the statements of the plaintiff’s financial condition made in contemplation of bankruptcy appear only in his letter of November 16, 1906. The jury might have been satisfied that the absence therein of any reference to the debt now claimed tended to contradict the plaintiff’s testimony, that he had demanded payment, as well as to support the defendant’s theory of rescission. Whatever might be the conclusion if the question had arisen on a motion for a new trial on the ground of newly discovered evidence, we cannot say as matter of law the contents of this letter are so obviously similar that it should be characterized as purely cumulative. Gardner v. Gardner, 2 Gray, 434, 443. Perkins v. Rice, 187 Mass. 28, 31.

If because of this error the exceptions must be sustained, there is no merit in the defendant’s further contention that the ruling as to interest was wrong. By the terms of the contract, the monthly instalments as they accrued became due and payable and no demand was necessary, and when the entire obligation matured interest commenced from that date on the amount unpaid, as the presiding judge correctly instructed the jury. Dodge v. Perkins, 9 Pick. 368, 388. Donahue v. Partridge, 160 Mass. 336.

Exceptions sustained.