Badart v. Foulon

Bryan, J., delivered the opinion of the Court. Therese Catherine Foulon, widow, of Brussels, Belgium, brought suit against Antonie F. Badart. The narr. contained the common counts in assumpsit, and'also a special count on a written contract. After a jury trial judgment was rendered against the defendant, and he appealed to this Court. It was shown in evidence that the parties entered into a written contract with each other, which was executed in duplicate signed with their respective hands; and that in consequence of this contract the plaintiff sent to the defendant ten thousand dollars. The ■ plaintiff and Mr. Schelfhoudt, her brother, were examined under a commission; they both described the transaction as a loan of money, and both testified that the defendant was indebted to the plaintiff. The defendant contended that the money was not loaned to him, but that by the written agreement the plaintiff entered into partnership with him, and that the sum of ten thousand dollars was her contribution to the partnership capital. The agreement was in the French language. Two competent interpreters were sworn, who made separate translations, differing from each other in some particulars. According to the testimony of the interpreter examined on behalf of the plaintiff, the transaction was described as a loan, and the money was required to be paid — 588 — back two years after the date of the loan. According to the testimony of the interpreter examined on behalf of the defendant, the transaction was described as a “contribution to the capital,” and the delivery of the money to the defendant by the plaintiff was called “advance money;” and the principal was redeemable two years after the date on which it was received. After the two translations had been offered in evidence, the defendant moved the Court to exclude the contract from the consideration of the jury. The Court overruled the motion, and the defendant excepted. This is the first exception. It is undoubtedly the province of the Court to construe all written instruments ; but if the language in which they are expressed is not understood by the Court, its meaning must in some way be ascertained before the construction can be determined. The words may have a peculiar and technical meaning; they may be terms belonging to some art, trade or science; they may by commercial or local usage have acquired an unusual signification; or they may be in a foreign language. In all these instances we must of necessity resort to evidence to disclose that which is unknown. The meanings of words are facts, and the jury is the tribunal to 'decide upon the existence of facts, except under circumstances of a special character, which haye no connection with the present question. In Williams v. Woods, 16 Maryland, 252, it was held that when the terms of a written instrument are technical or equivocal, parol evidence is admissible to explain their meaning, and that this evidence is for the consideration of the jury; and that the Court must instruct the jury, conditionally or hypothetically, what should be the proper construction of the written instrument, accordingly as they find the meaning of the words from the evidence. There can be no possible reason for a difference in the mode of proving the meaning of unknown words, whether they belong to science, art, mercantile usage, or a foreign language. It is the circumstance that their meaning is unknown, which makes it necessary to have the evidence — 589 — to explain them. And this necessity applies to a foreign language in exactly the same manner as to any other description of unknown words. In Share v. Wilson, 9 Clark and Finnelly, 355, a question arose about the admission of extrinsic evidence to explain certain terms and phrases contained in the deeds by which Lady Hewley’s charities were established. The case was veiy fully and ably argued in the House of Lords, in the presence of seven of the Judges, whose attendance was requested, and whose opinions were asked by the Lords. The decree was passed in accordance with the opinion of six of the Judges and of Lord Brougham, Lord Lyndhurst and the Lord Chancellor. Three of the learned Judges took occasion to show that where the writing to be interpreted was in a foreign language, there was no difference in the mode of proof from that which prevailed in the ordinary case of unknown words. Mr. Justice Erskine said, “ where the instrument is in a foreign language * * * the jury must ascertain the meaning of the terms upon the evidence of persons skilled in the particular language,” page 511. Baron Parke said: “In the first place, there is no doubt that not only where the language of the instrument is such ■ as the Court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it was written in a foreign tongue; but, it is also competent, where technical words or peculiar terms, or indeed any expressions are used, which, at the time the instrument was written, had acquired an appropriate meaning, either generally or by local usage, or amongst particular classes,” page 555. Lord Chief Justice Tindal, speaking of ascertaining the meaning of a written instrument by external evidence, said: “ Such investigation does of necessity take place in the interpretation of instruments written in á foreign language; in the case of ancient instruments, where, by the lapse of time and change of manners, the words have acquired, in the present age, a different meaning from that which they bore when originally employed; in cases where terms of art or science occur, in mercantile con — 590 — tracts, which in many instances use a peculiar language employed by those only who are conversant in trade and commerce,” page 566—7, In the second volume of Starkie on Evidence, page 779, the learned author, in speaking of the admission of evidence to explain terms in a contract which are used in a special and peculiar sense, goes on to say: “ The case seems to fall within the same consideration as if the parties in framing their contract had made use of a foreign language which the Courts are not bound to understand.” For these reasons we think that the original contract was properly admitted in evidence along with the translations. The defendant tendered in evidence an instrument of writing purporting to be a contract between himself and his son Edward, in which his son described himself as the duly authorized agent of the plaintiff and Schelfhoudt, her brother. The Court refused to admit it. There was no evidence that Edward Badart was authorized to make a contract in behalf of the plaintiff, and consequently we approve of the Court’s ruling. The third exception was taken to the Court’s refusal to permit the defendant to testify that the plaintiff had an opportunity to object to the above mentioned contract. As the contract was not authorized by her, and was in no way binding on her, it was entirely irrelevant to inquire whether she had an opportunity to object to it or not. She had, however, testified under the commission that she never agreed to it. The fourth and fifth exceptions were taken to the refusal of the Court to admit an unsigned telegram, and a letter stated to have been received from Schelfhoudt, tending to show some change in the original contract between plaintiff, and defendant. There was no evidence that Schelfhoudt had any .authority to make any change in this contract. The sixth exception was to the Court’s ruling in excluding from the jury a contract between Schelfhoudt and the defendant, dated May 26th, eighteen hundred and eighty-eight, and a letter from the same person, dated March 26th — 591 — of the same year. These papers had been admitted subject to exception. The letter was preliminary to the contract between the plaintiff and defendant. In this letter the following words occur: “I have asked you for a contract similar to mine for Therese” (the plaintiff.) The contract referred to was the one just mentioned. As the plaintiff’s contract with the defendant was executed subsequently to the letter and contract in question, to-wit, on the twentieth of April, eighteen hundred and eighty-nine, all the preliminary negotiations were merged in it. The established rule is stated in Greenleaf’s Evidence, section 275: “ When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected.” Defendant offered eight prayers, but subsequently withdrew the fifth and sixth. The Court rejected the first, second, fourth and eighth and granted the third and seventh. The first prayer maintained that there was no evidence legally sufficient to entitle the plaintiff to recover. It was competent for the jury to find the execution of the contract; the correctness of the translation offered in evidence by the plaintiff; the delivery of the ten thousand dollars to the defendant, and his failure to repay it at the expiration of two years. If they found these facts, the plaintiff’s right of recovery was established. We have already disposed of the questions in the second and fourth prayers by what we have said on the second, third, fourth and fifth exceptions. The eighth prayer is in these words: “ The jury are instructed that the contract of April 20th, 1889, offered in evidence — 592 — by the plaintiff, is not binding upon the defendant unless it was either delivered to the plaintiff personally or to an agent of the said plaintiff authorized to receive it, by the defendant personally or through an agent authorized to deliver it, and unless the jury shall find such delivery, then, under-the pleadings and all the evidence in the cause, their verdict must be for the defendant; but the jury are further instructed that possession and production of the said contract by the plaintiff is prima facie proof of its delivery.” This prayer is drawn with great ingenuity. We will inquire whether it was proper to be given to the jury under the evidence in the cause. The defendant shewed by his own testimony ’ that he had executed this contract; that it was in the plaintiff’s possession with his knowledge; that he had received the plaintiff’s money under it; that he had written a letter to her (October 14th, eighteen hundred and ninety), in which he suggested a modification of it; and that he had paid money under it to Schelf houdt for her use. It would hardly be just, in the face of such testimony, to allow him to deny the delivery before the jury. If it were necessary to decide the question, we should be inclined to adopt in this case the rule applicable to holders of promissory notes; that is to say, that possession is prima facie evidence of delivery, and that it is sufficient to enable the holder to maintain a suit unless mala fides is proved. Whiteford v. Burckmyer, 1 Gill, 145; Burckmyer v. Whiteford, 6 Gill, 16; Merrick v. Bank of Metropolis, 8 Gill, 71. We do not wish, however, to be understood as intimating that where two parties enter into a written contract, and one of them performs all the stipulations on his part, that the other can defeat an action on the contract by refusing to deliver the instrument. This eighth prayer ought not under any circumstances to have been granted, because, even if the instrument had not been delivered, and the nondelivery had nullified the contract, the defendant would have been liable on the common counts in the declaration for the plaintiff’s money which had been delivered to him. — 593 — (Decided March 26th, 1895.) In the instruction given by the Court, it was assumed that the translation asserted by the plaintiff was correct. We have seen that this question ought to have been left to the jury; but as there was no special exception to this instruction, we cannot reverse for this reason. Judgment Affirmed.