Lynn Safe Deposit & Trust Co. v. Andrews

Hammond, J. 1. As to the demurrer. The original declaration contained one count. To that a general answer was filed. After that the declaration was amended by the addition of a [532] second count and the defendant then demurred. Such a demurrer must be restricted in its application to the added count or to some impropriety in joining the two counts in the same declaration. There is no such inconsistency between the two counts as to afford grounds for demurrer. The plaintiff may properly state its case in different ways so as to meet each of the various aspects in which the evidence at the trial may possibly leave it. The second count sufficiently describes the note. The action is not upon the note but upon the guaranty, which is set out in full. The count sufficiently sets out the contract of guaranty, the loan in reliance thereon and the breach thereof by the defendant. The demurrer was rightly overruled. 2. The demurrer having been overruled, the trial of the case upon its merits was begun before a jury, but at the close of the evidence the case was taken from the jury by consent of the parties, and upon the evidence was further heard by the judge and disposed of as a jury waived case. The judge made a finding of facts, a statement of which, against the exception of the defendant, was incorporated in the bill of exceptions. The case is before us upon the various exceptions raised at the trial before the jury and at the argument before the judge including the action of the judge upon the rulings requested, and to the finding of facts. Such exceptions as have not been argued upon the defendant’s brief we shall consider waived. As to the findings of facts it is sufficient to say, that after an examination of the evidence, which need not be recited in detail, the findings seem to us to be well warranted; and in the further consideration of the case we shall take the facts as thus found. One of the questions raised by the defendant is whether the contract of guaranty was ever made. He contends that the sending of the guaranty was an offer from him which was never accepted by the plaintiff, or that at any rate the plaintiff never notified him of its acceptance. But the facts sufficiently show a binding contract between the plaintiff and the defendant. The guaranty was forwarded to the plaintiff plainly in pursuance of a previous understanding and agreement that it should be sent upon a certain condition, namely, the willingness of the plaintiff to make a loan to Tuttle. The defendant, upon receiving the letter of the plaintiff’s president which stated that upon the [533] return of the guaranty duly executed the loan would be made, at once sent the guaranty in performance of the agreement. Within two or three days he knew that in reliance upon the guaranty the loan had been made. Under these circumstances the guaranty became operative, and there was no need of further notice. Bascom v. Smith, 164 Mass. 61. Lennox v. Murphy, 171 Mass. 370. Another objection is that the note given by Tuttle materially differs from that which the defendant agreed to guarantee. This, objection may be considered in connection with the exception taken by the defendant to the admission of oral testimony. The defendant contended throughout the trial that the note given by Tuttle' was not and could not be the note described in the guaranty, and therefore was not admissible in evidence, and asked the court so to rule. He further contended that the conversation between the plaintiff’s president, Tuttle and the defendant, at the time the application for the loan was made, was not competent evidence for any purpose, and that the court should take the guaranty and note and, without the assistance of any oral testimony and without taking into account the circumstances under which it was made, should determine whether the guaranty could be applied to the note. The judge admitted the note, the evidence as to the conversation, and also evidence that where collateral security is given to secure a note taken by trust companies and banks in this State the universal custom and practice is to have the note in the form of the one taken in this case, and that a note like this is called and described in the business community as a six months’ note or a note payable in six months from date. It is perfectly well settled that while oral testimony is not admissible to contradict, enlarge, limit or vary a written instrument, it is nevertheless admissible to show the situation of the parties and the circumstances at the time when the contract was made. Bassett v. Rogers, 162 Mass. 47, and cases cited. Brake v. Allen, 179 Mass. 197. It is equally well settled that in explanation of any term of a contract oral evidence is admissible to show that a particular significance had been attached to it by reputation, usage of trade, or otherwise. Stoops v. Smith, 100 Mass. 63. Swett v. Shumway, 102 Mass. 365. The [534] purpose of all such evidence- is to ascertain in what sense the parties used the term; and sorry work would be made if he who is to interpret a ’contract should close his eyes, if indeed such a thing could be completely done, to every other thing except the papers before him. The evidence was clearly admissible. It appears from the findings of fact, that before the guaranty was given the defendant knew that the plaintiff was to investigate his financial standing, and if satisfied was to make the loan to Tuttle, and was to have Tuttle’s note secured by two hundred shares of the capital stock of the Tuttle-Smith Company as collateral security and guaranteed by the defendant. The latter also knew that the plaintiff was a trust company, and may be presumed to have known that such a note would be in the form in universal use among institutions like the plaintiff. In a day or two he is notified by a letter from the plaintiff that if he will fill out, execute and send to it the form of guaranty therein enclosed, it will immediately maké the loan. "He does as requested, and the loan is made ; and the plaintiff receives from Tuttle a note in the form universally used in such a transaction. The judge has found as a fact, and as a conclusion of fact from the evidence, that the note "was the note described in the guaranty. Such a finding is-not inconsistent with the terms of the guaranty. Such a note is known in business circles as a note “ payable in six months from date,” and it is payable to the'order of the Lynn Safe Deposit and Trust Company of Lynn, Mass., in the manner in which according to the usage such a note is made payable, it is dated at Boston and in all other respects agrees with the guaranty. We see no error in the manner in whióh the judge treated any of the rulings requested. The case' seems to us too plain to call for further discussion. Demurrer overruled ; exceptions overruled.