Radigan v. Johnson

Morton, J. The testimony that was offered by the plaintiff for the purpose of showing that the defendant agreed that if the plaintiff would have the release drawn and signed and handed to him he would then permit her to go on using the horses in the ordinary course of business was a plain attempt to engraft upon the written contract an oral agreement contemporaneous with it and was inadmissible. It tended to vary the contract as written by introducing into it another stipulation. This could not be done under the guise of showing what the consideration was. Pike v. McIntosh, 167 Mass. 309. Knowlton v. Keenan, 146 Mass. 86. Simanovich v. Wood, 145 Mass. 180. Howe v. Walker, 4 Gray, 318. We think that the transaction was in the nature of a pledge of the property described in the contract as security for the payment of the sum named at the rate of $15 per week. Thompson v. Dolliver, 132 Mass. 103. Walker v. Staples, 5 Allen, 34. Upon the failure or neglect of the plaintiff to pay as agreed, the whole debt became due, and the defendant could enforce his security by a sale of the pledge (Upham v. Smith, [74] 7 Mass. 265, Reed v. Stoddard, 100 Mass. 425, 427) ; or he could waive the breach of the agreement, and if he did so, and the plaintiff afterwards paid the instalments as they fell due and in other respects observed the conditions of the pledge, a sale by the defendant would constitute a conversion. Whether the defendant by accepting the amounts which were paid after ho demanded a settlement in January, 1898, waived his right to insist upon the payment of the whole debt, was a question for the jury under suitable instructions. The'defendant also contends that he had a lien as stable keeper, and that, therefore, this" action cannot be maintained. But so far as the exceptions show he dealt with the property as pledgee, and not by virtue of any lien which he had as stable keeper. We are in doubt, as the exceptions stand, how far, if at all, the matter of the lien and how it would affect the rights of the' parties was brought to the attention of the court. At another trial the facts may appear more fully, and we therefore do not deem it wise to discuss the matter now. Exceptions sustained.