Burke v. Claughton

Mr. Justice Morris delivered the opinion of the Court: It is not quite apparent by what process the sum of $> 1,911 was reached which the court below directed the jury to return as the amount of their verdict in the event that they should find the contract between the parties to have been in accordance with the appellee’s contention; but it seems to have been acquiesced in by counsel for the appellant, and no point is made of it here. There is controversy, however, in regard to the date from which that sum should bear interest, which in the judgment is given as February 5, 1887, in accordance with the appellee’s claim in his declaration. That this is plain, palpable error, — 371 — is beyond any possibility of doubt. There is no foundation whatever for it in the testimony; and why the appellee should have inadvertently caused the error by the statement of his claim as of that date in his declaration, remains unexplained either in the brief or in the oral argument on his behalf, in both of which the effort is to show, in view of the decision of the Supreme Court of the United States in the case of Mobile, &c., Railroad Co. v. Jurey, 111 U. S. 584, that the error, palpable though it is, cannot be corrected here, because, as it is claimed, the instruction in which the error was pointed out in the court below contained two propositions, one of which is claimed to be good. But whether the present case may not be distinguished from that, it is unnecessary for us here to determine, inasmuch as we think our decision of this case may be placed upon other grounds that" appear in the record. In view, however, of the fact that a new trial must necessarily be had, we think it proper to direct attention to the fact that, certainly not before the final decree of the Court of Appeals of Virginia, which was on September 29, 1887, and probably not before February 1, 1888, the day on which the appellant collected the overdue coupons, according to his uncontroverted statement, could the appellee properly have made demand for his compensation, and the light to interest have accrued from the appellant’s refusal to pay it. We presume that the date intended to be stated by the appellee was February 7, 1888, and not Februaiy 7, 1887. But we think that a graver error than that regarding the matter of interest appears in the record. The third and fifth instructions requested by the defendant and which were refused by the court, sought to raise the question as to the effect to be given to the letters addressed by the parties to Manning and Kellogg as constituting what the appellant claims to have been the contemporaneous construction put by both parties upon their contract. By the refusal of these instructions and by its subsequent charge to the jury, the latter were directed to disregard these let — 372 — ters as having no bearing whatever upon the contract; and they were told that the contract itself was a question of law for the court. We cannot assent to these propositions. The terms of the contract between the parties constituted the very question in controversy between them. That there was a contract between them, is conceded. It is not conceded that it was reduced to writing. On the contrary, it is virtually admitted by both parties that, in the first instance, at least, the contract, as originally made in the autumn of 1883, was merely verbal, as had been all similar contracts of the parties, that is, all their contracts for professional services for upwards of twenty years; and the memorandum of May 27, 1884, was not suggested, originated, or in any manner procured by either of the parties to this suit, so far as the present record discloses. The appellant, while he admits to have received this memorandum from McKenzie, who drew it up probably for his own benefit, denies that he knew anything of its contents until long afterwards ; and this, under all the circumstances, is not entirely improbable. It is not claimed that he executed it, or had anything to do with its inception or preparation. It was executed by Mr. Claughton alone; and the claim of the appellee is that it was accepted by the appellant, and thereby became his contract. But the acceptance is matter in pais, and being matter in pais, it left the whole transaction in parol, and remitted its determination to the jury. Whether it was accepted, therefore, by the appellant, and if accepted by him, whether with or without qualification ; and if not accepted by him, whether the parties did not thereafter proceed under the verbal understanding or agreement of the previous autumn of 1883, and what the terms of that understanding were — all these were questions for the jury to decide; and the memorandum was not itself the contract between the parties, but merely one item of evidence to •show what the contract was. The letters to Manning and Kellogg were items of evidence of equal importance to the memorandum, and equally competent to show the charac — 373 — ter of the transaction between the parties; and there was, therefore, no just reason to exclude them from the consideration of the jury. They had been admitted in evidence without objection, and properly admitted; for they were not res inter alios acta, but part of the res gestee — explicit representations made in solemn manner to those who were intended to be included in the agreement, and one of whom at least came into the agreement upon the faith of such representations. We presume it could scarcely be claimed with any show of reason that Kellogg or Manning would have been bound by the memorandum of May 27, 1884. They at least could have stood on the terms of the letters addressed to them ; and it would be a strange conclusion, under the circumstances of this case, that the contract, if the memorandum be regarded as such contract, which purported on its face to be the same for all who came into the arrangement, should be construed to be one thing for the appellant and another thing for Kellogg. The enterprise was one; the contract of one was evidently the contract of all; and it should be construed the same for all. It is very clear to us, therefore, that the deliberate statement in writing, purporting to have been made by the appellee after conference with the appellant and purporting to be a precise and accurate statement of what the contract was, made to a third person for the purpose of inducing that third person to become a party to the contract and who did in fact become a party to the contract upon that representation of what it was, should have been taken into consideration by the jury in determining what it was, and that it was grave error to direct the jury to disregard it. The views here stated are abundantly supported by authority. Bailey v. Hannibal & St. Jo. Railroad Co., 17 Wall. 96; Pacific Iron Works v. Newhall, 34 Conn. 67; Rawson v. Haigh, 2 Bing. 99; Hill v. Miller, 76 N. Y. 32; Stoops v. Smith, 100 Mass. 63; Thorington v. Smith, 8 Wall. 1; 1 Greenleaf on Evidence, sec. 283. But even upon the assumption upon which the court be — 374 — low seems to have rested its decision, that the memorandum of May 27, 1884, constituted in itself a complete contract, it is not apparent to us that the letters in question may not be admissible to show how the parties understood that memorandum. The terms of that instrument cannot reasonably be claimed to be entirely clear and free from all doubt. There are ambiguities in it that might be removed by extraneous testimony. And whatever may be the proper judicial construction of it if it stood alone, there is certainly reasonable room for doubt as to what the parties meant by the expression, “the amount of the judgment,” upon which the compensation was to be based. The appellant here claims that this meant the amount of money that should be adjudged to be due upon the coupons; the appellee, on the contrary, claims that this meant the whole amount of the principal and interest of the bonds, although there could not be any actual present judgment for that principal or' for the coupons that had not yet matured. Both claims are reasonable enough in themselves; and therefore, in the obscurity or ambiguity of the terms used, which is a latent ambiguity arising out of extraneous circumstances, it would seem not to be improper to permit evidence to show what interpretation the parties themselves put upon their understanding or agreement at the time or about the time at which it was made and before there was any contemplation of dispute or litigation upon the subject. But this point it is unnecessary for us to decide. It is sufficient for us to rest our opinion upon the broad ground that there was in this case no completely executed contract in writing, binding as such upon all the parties to the transaction ; that the contract therefore rested in parol, and that to show what it was the statements of the parties, whether written or oral, that were made at the time to induce others to enter into it, were proper to be considered by the jury. The letters which the jury were told to disregard were statements of that character; and while these statements are not, in the present suit and as between the present par — 375 — ties, to be regarded as conclusive or as operating by way of estoppel, they are to be taken into consideration for what they may be worth to throw light upon the transaction between the parties and to determine what their contract really was. Being of this opinion, we think that there was error in the rulings of the court below, for which the judgment of that court must be reversed, with costs, and a new trial ordered. And it is so ordered.