Malone v. Dougherty

Mr. Justice Woodward delivered the opinion of the court, October 13th 3875. The rejection of the proof which the defendant below proposed to make by the testimony of Daniel W. Seiler, one of the plaintiffs, on cross-examination, is the ground for the first and second specifications of error. The facts themselves were both relevant and material. They were offered to show, in substance, that when the agreement of the 30th of July 1867, for the transfer to the defendant and Michael J. Barry of the original contract of Dougherty, Michael Barry, Malone and Seiler with the Western Maryland Railroad Company was made, the plaintiffs were aware that payment by the railroad company was about to be suspended. But it does not follow that the evidence was admissible on cross-examination. The suit was on a note given on the 30th of July 1867. The suspension of payment did not occur until some weeks afterwards. The admission of proof that the plaintiffs had knowledge of it would have involved the admissibility of proof of the fact of the subsequent suspension itself. And to make these details intelligible, and to show their relevancy to the issue, it would have been necessary to exhaust the knowledge of the witnesses in relation to the effect on the interests of the defendant which the suspension produced. The whole defence would have been interjected into the case upon the cross-examination of the first witness for the plaintiffs, and the presentation of their rebutting evidence would have been rendered inevitable. By such a method of development the trial of the cause would have been only confused, hampered and delayed. The evidence could have been offered with perfect safety on the part of the defendant in chief. By the 2d section of the Act of April 15th 1869, Mr. Seiler could have been required to testify “ as if under cross-examination.” It is not apparent how, by pursuing legitimate forms, the defence would have been subject to any embarrassment, or have incurred the loss of any due advantage. The offers were properly rejected. At the stage which had been reached when the testimony specified in the third and fourth assignments of error was offered, the ruling of the court in rejecting it was right. The agreement of the plaintiffs of the 3d of October 1867, providing that the note in suit should be withdrawn if the defendant could show that he made no money out of the July estimate paid by the railroad company, had been given in evidence. The proposition of the defendant to prove that suits had been brought against the original contractor; that the defendant undertook to settle them and procure releases from the railroad company and the sub-contractors, and that this was done under an arrangement of which the paper of the 3d of October 1867 was part, amounted to nothing more than an [52] offer to show that he undertook in October to perform the agreement he had made on the preceding 30th of July. In accepting the assignment of the railroad contract, the defendant and Michael J. Barry had bound themselves to pay all the debts of the original co-partnership, and “ to save, defend and keep harmless the said Dougherty and Seiler, and their estates and effects, from all losses, damages, costs and expenses by reason of any engagements of the said late co-partnership.” The consideration of the assignment was ten thousand dollars, of which the note in suit was part. It is obvious that a defence to this note could not consist in proof that the obligations assumed in the agreement for the assignment were either subsequently undertaken or subsequently performed. The offer to show that the defendant had made no money on the July estimate was properly treated as incompetent, for, as the case stood, there was nothing whatever to indicate that the agreement of the 3d of October 1867 had been made upon any consideration, and without that, it was conceded on the argument, for all contract purposes it was valueless and void. The fifth assignment is based on better grounds. The defendant proposed to prove that “ on the 3d of October 1867 there was a new contract made between the parties, by which the plaintiffs agreed to release or discharge the defendant from the note in suit, in consideration of which the defendant agreed to release, and did release, to the railroad company, his interest in the original contract of construction, at the request of the plaintiffs.” That the scope of this offer was inadequately apprehended, is apparent from the record. The counsel for the plaintiffs objected to it because it was “not offered to show that the plaintiffs requested the defendant to release the railroad company from its contract for construction;” and the court rejected it on the ground that “the subsequent arrangement of the defendants and the company was of their own mere motion, and without the plaintiffs’ request.” It is probable that if the testimony specified in the fourth, sixth and seventh bills of exception had been presented in a single offer, exhibiting in symmetrical form the entire theory of the case which the defendant set up, the controversy would have been finally determined in the court below. There is no doubt that the evidence to establish a fresh contract in October 1867 ought to have been received. And the reception of that evidence would probably have brought into view the details of the new arrangement which, when separately presented, had been properly excluded. Enough can be gathered from the record to indicate at least that on the 3d of October 1867, embarrassments had been encountered in the efforts of'the defendant and his partner to perform the contract which they had assumed, and that some suits had been [53] brought and others were threatened against the original contractors, amongst whom the plaintiffs were included. For reasons that satisfied the parties, a different mode from that originally adopted was agreed upon in order to relieve them all from the obligations under which they rested. This mode involved the relinquishment by the defendant and Michael J. Barry of their rights under the contract with the company. And permission was asked to prove that these rights were thus relinquished at the instance' of the plaintiffs. All the elements of a contract are embraced in the facts alleged. The release executed to the company, and the extinguishment of the claims of creditors by that means, would constitute a consideration for the stipulation of the plaintiffs to withdraw their claim upon the note in suit upon the terms which the agreement of the 3d of October specified. “ A release to a third party of an interest in lands, at the request of the promissor, is a good consideration for his promise, in a certain event, to pay the releasor a sum of money Shoenberger’s Ex’rs v. Zook and Wife, 10 Casey 24. The proposition to prove the new contract which was made on behalf of the defence, was warranted by ample authority. The rule that extrinsic verbal evidence is not admissible to contradict or alter a written instrument, is not infringed by the admission of oral evidence to prove a new and distinct agreement, upon a new consideration, whether it be a substitute for the old, or in addition to and beyond it: 1 Grreenl. Ev., § 303. It is also well settled that in a ease of a simple contract in writing, oral evidence is permissible to show that by a subsequent agreement the time of performance was enlarged, or the place of performance changed, the contract having been performed according to the enlarged time, or at the substituted place, or the performance having been prevented by the act of the other party ; or that the agreement itself was waived or abandoned. So it has been held competent to prove an 'additional and suppletory agreement by parol; as, for example, where a contract for the hire of a horse was in writing, and it was further agreed by parol, that accidents occasioned by his shying should be at the risk of the hirer: Ibid., § 304; Le Fevre v. Le Fevre, 4 S. & R. 241, supports the same general rule. It is no answer to the general objections of the defendant to say that the agreement of the 3d of October 1867, for the withdrawal of the note, was a conditional promise resting upon an executory consideration, and that a failure to show a loss of profits on the July estimate left the consideration unexecuted. This might be so if the entire contract consisted of the instrument in question. But it is alleged that this was part of the contract only, and that the agreement to release the railroad company, which was the consideration for the instrument itself, has been performed. As the offer of proof in regard to profits was rightly rejected when it was [54] made, there is nothing to require the expression of any opinion as to its admissibility on its presentation before another jury. It may be said, however, that in the absence of any plan of ascertainment provided by the paper, or by any subsequent agreement of the parties, it is difficult to conceive of any other mode of settling the question than by making it an issue in the trial of the cause. Judgment reversed, and venire facias de novo awarded.