Loweth v. Bradford

Loring, J. This is an action in which the plaintiff sought to recover from the defendants two sums of $2,200, $2,000 in each case being for his services in painting a portrait of the defendants’ testator and $200 in each case being for money paid by him at the testator’s request in buying a frame for the portrait in question. The testator died on September 1,1914. This action was brought after his death. The plaintiff testified that in March, 1912, the testator agreed to pay him $2,000 for painting an oil portrait “if the painting was satisfactory to him” and that at the testator’s request he paid the sum of $200 for a frame for the portrait. The plaintiff further testified that pursuant to this agreement “he began work on the oil painting” and in the course of the work that he used a pastel [587] sketch which he had made of the testator; that later the testator requested the plaintiff to finish and complete the pastel sketch and that he agreed to pay for the same $2,000 and also that he asked him (the plaintiff) to buy a frame for it at a cost of $200. The defendants introduced in evidence a letter dated February 14, 1912, signed by the plaintiff in these words: “As pr your suggestion in our recent conversation relative to portrait I submit to you my proposition in writing. I will say that I am always ready to fulfill my proposal given to you, in every instance, in order to give the Springfield public an opportunity to become acquainted with my work. Hoping to hear from you favorably. Yours very respectfully, H. Loweth.” It is stated in the bill of exceptions that this letter was not satisfactory to the testator “because it did not state fully the terms of the proposition” which the plaintiff had made to him and thereupon that he (the testator) “wrote in his own handwriting on the back of this letter, the following statement, which the plaintiff, Mr. Loweth, signed: My proposal referred to is to paint your portrait for the express purpose of being allowed to exhibit it, to show' to the public my capacity and character as a portrait artist. You are under no obligation to take the portrait, or if your children care for it at all, they may keep it at their own price.” This indorsement was made on March 1, 1912. The defendants also introduced in evidence a letter to the testator from Leary and Beattie, attorneys for the plaintiff, dated September 17, 1913, in which those attorneys -stated that the plaintiff had placed in their hands a claim against him “for the painting of two beautiful and excellent portraits” of the testator. On the back of this letter there was a memorandum in the handwriting of the testator setting forth a copy of his answer and following this a memorandum in the testator’s handwriting in these words: “October 9, 1913. Lawyer Leary called in re H. Loweth and showed him Loweth’s signed proposition, etc. etc. Leary says he shall advise him that he has no case and that he is sorry for him but he can do nothing for him, etc.” In addition the defendants introduced the following memorandum in the handwriting of the testator found in his safe deposit box: “In re H. Loweth. Introduced by Bacon Jan., 1912. Gave his signed proposition Mar. 1, 1912. Leary & Beattie note Sept. 1913. Lawyer Welcker April, 1914. April 10, 1914: M. L. [588] Welcker, Esq., (Lawyer) Holyoke, Mass. Came in and said Loweth had put his case in his hands, etc. That he had had an interview with Leary, who told him of a contract or letter Loweth had signed and wanted to see it. Showed it to him, when he said he should decline to take the case, etc., etc.” With respect to the written agreement the plaintiff testified at the trial that his “signature to this statement on the back of the letter hereinbefore referred to, was obtained by an active fraud on the part of Mr. Bradford, the plaintiff claiming that Mr. Bradford fraudulently held his hand over the paper and made fraudulent statements which fraudulently induced him to sign the statement without reading it.” Later one Gill (being on the stand as a witness for the defendants) testified without objection being made thereto “that he had known Mr. Bradford for many years and was acquainted with his business dealings” and thereupon the defendants’ counsel asked him the following question with reference to the habits of dealing of the defendants’ testator: “Now I ask you what were his habits of dealing in connection with his business, which might tend to show a willingness or unwillingness to commit fraud?” The defendants’ counsel stated that he expected the witness to answer “that the defendants’ testator, Mr. Bradford, was honest, straightforward and upright in his business dealings.” The question was excluded and an exception taken. The jury returned a verdict for the plaintiff in the sum of $2,200 and answered in the negative these questions put to them by the judge: “Did you find the defendants liable to the plaintiff under the alleged contract for an oil painting?”; “Did you find the testator, Mr. Bradford, guilty of fraud in any of his transactions with the plaintiff?” The only exception before us is the exception to the exclusion of the evidence offered by the defendants. The defendants have argued that “the evidence of his [testator ’s] acts and habits of dealing tending to disprove or to show the improbability of the making of such promise” was admissible by force of R. L. c. 175, § 67, and that the evidence was admissible on both claims made by the plaintiff. We are of opinion that the evidence if admissible was admissible only on the claim for painting the oil portrait. On this [589] claim the defendant was successful. This is apparent from the answers of the jury to the special questions put to them by the judge. We are of opinion that the evidence (if it was within R. L. c. 175, § 67) was not admissible on the other claim made by the plaintiff. It follows that the exception must be overruled. We do not find it necessary to consider whether this evidence was admissible under R. L. c. 175, § 67, in any case. Exception overruled.