Banewur v. Levenson

• Decision Date: 12 April 1898
• Citation: 50 N.E. 10,171 Mass. 1
• Parties: BANEWUR et al. v. LEVENSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 1

50 N.E. 10

BANEWUR et al. v. LEVENSON.

Supreme Judicial Court of Massachusetts, Suffolk.

April 12, 1898

COUNSEL

S.L. Whipple and J. Bon, for plaintiffs.

J.E Young, for defendant.

OPINION

BARKER J.

The exceptions relating to the count in tort are now immaterial. The verdict is upon a count in contract, not set out in the bill of exceptions, but a copy of which is with the record transmitted to the chief justice. The defendant contends that the case should not have been left to the jury, and that the instructions given as to the different defenses and to the measure of damages were wrong. The case seems to have been submitted to the jury by the presiding justice, with the assent of both parties, upon issues not strictly defined by the pleadings; and we consider the questions raised as if the pleadings, which have been repeatedly amended, presented the issues which the presiding justice, in his charge, directed the jury to try and to decide, the arguments in this court having been upon the issue so raised. In the course of the charge, the real issue upon which the jury were to pass was thus stated by the presiding justice: "The plaintiffs say: *** 'We found our creditors willing to assent. We had the advice of our friends, that that was a proper settlement to make. Mr. Levenson agreed with us to furnish the money--$800--to settle with the creditors, and thereupon take our property into his hands, and hold it as security for the $800 which he advanced, for the $100 which he was to receive for his compensation, and for the $100 which was reckoned as probable or as to be incurred in the way of costs.' Now, they must satisfy you, of course, by the preponderance of the evidence, that such a state of things existed." The plaintiffs contend that their case is this: They were dealers having a stock of goods, and owing $2,400, which they could not pay. Creditors had sued, and the stock of goods was in possession of an officer under attachments. All the creditors were willing to take off the attachments, and to release the plaintiffs from the debts upon receiving 331/3 per cent. of their claims. Thereupon the defendant orally agreed with the plaintiffs to furnish $800 and a further sum of $100 for expenses, and with this sum to extinguish the plaintiffs' debts, and for his services he was to have another $100. Upon the release of the attachments, he was to have possession of the stock of goods until he should be reimbursed and paid the sum of $1,000 made up as stated. The defendant has furnished no money, and has paid none of the debts, but has got possession of the stock of goods, and has refused to restore them to the plaintiffs. The defendant was not unable to perform his agreement by reason of the refusal of any creditor to accept the percentage. The verdict found upon this contract, and its breach was rendered under instructions which allowed the jury to give damages because the plaintiffs' debts of $2,400 were not extinguished at a cost to them of $1,000, and for loss upon the stock of goods which the defendant got possession of by other means than through the performance of his contract.

1. The first contention now made by the defendant in support of his exceptions is that there was no evidence of a contract between the plaintiffs and the defendant, and that the only contract which he made was with the creditors. The evidence tended to show that the first attachment was made on November 17, 1892, and that other creditors made successive attachments; whereupon the plaintiffs visited their creditors, and secured from most of them an agreement to accept the 331/3 per cent. After this, there was a disagreement between the plaintiffs; and friends were called in, who made a written statement, communicated to and signed by each of the plaintiffs. This statement contained several particulars as to what the defendant was to do, and he was one of the persons who signed it; and, when it was communicated to and assented to by the plaintiffs, he stated orally that he would furnish the $800 for settlement with the creditors; and not long after he gave to the first attaching creditor his covenant to pay each of the plaintiffs' creditors the percentage of their respective claims, and the legal expenses. This evidence, with the auditor's report, was enough to justify the finding that the defendant did make an oral contract with the plaintiffs. It was natural for him to agree with the creditors to pay them their percentages and expenses after he had made that agreement with the plaintiffs.

2. The defendant next contends that, if there was a contract between himself and the plaintiffs, its terms must be found in the statement of the friends who were called in as before stated, and that the delivery of the stock of goods to him was a condition precedent, which was to be performed by the plaintiffs, and which precludes their recovery. But the terms of the contract might be found outside of the writing.

3. The defendant also contends that the plaintiffs cannot recover upon the oral contract, because it has been abandoned and rescinded by the parties. Such a defense must be established by proof, and the burden of proving it is upon the defendant. The evidence tended to show that, some weeks after the defendant had covenanted to pay the creditors their percentages and legal expenses, the plaintiffs and the defendant signed an indenture under seal, of three parts, in which they were the party of the first part, the defendant was the party of the second part, and the creditors the party of the third part; but no creditor ever assented to it. This indenture purported to convey all the plaintiffs' property to the defendant in trust to reduce it to money, and to pay preferred claims, and distribute the rest ratably among the creditors, and to release the plaintiffs from their debts. The presiding justice ruled that this indenture could not be relied upon as a defense, because, never having become complete by the signatures of the creditors, it remained inchoate and of no effect. We think this ruling right. As presented at the trial, the question was not whether the jury might infer from the execution of the indenture by the plaintiffs and the defendant an actual previous abandonment and rescission of the previous oral agreement, but whether the indenture itself, in the condition in which it was put in evidence, unexecuted by the creditors, worked such a rescission; and it did not.

4. The defendant further contends that a suit in which he has replevied the goods from the attaching officer, and has been adjudged to return them, is a defense. We cannot see that these transactions bar the plaintiffs' action for breach of the defendant's contract. He, and not the plaintiffs, was to procure the release of the goods. The plaintiffs were not to deliver them to him. That he has chosen another course, which is in violation of his contract, and has placed him under obligations to third persons, is not a defense to the plaintiffs' action for his breach of his contract with them. Nor do we see how the fact that the defendant has made himself liable to the attaching officer in damages for the failure to return the goods to the officer upon the judgment for a return could be considered in reduction of damages in the present suit. If a possible problematical future result of the wrong which the defendant did to the attaching officer in replevying the property when the latter was entitled to its possession may be the payment of some debt of the plaintiff, the defendant cannot offset that contingent future benefit against the damages caused to them by his own breach of contract. It is wholly problematical whether such a result will ever follow.

5. The final contention of the defendant is that the plaintiffs cannot recover the whole amount that they expected to gain by the contract, unless they can show that, after the defendant neglected to furnish the money, they used diligence in trying to get it elsewhere. If the contract had been merely to furnish them with $800 as a loan, damages for the loss which the plaintiffs suffered in not having their debts canceled and discharged would have been too remote. But the contract which the plaintiffs asked the jury to find was not a contract to lend them money, but that the defendant would himself apply his own money in a certain way, and so release their property from attachment and the plaintiffs from debts of three times the amount of the money to be used. The breach of the contract was not in a failure to lend to the plaintiffs $800, but in the failure to extinguish for them debts to the amount of $2,400, and to relieve their goods from attachment. Having made that bargain with him, they were not required, in order to recover damages for its breach, to prove that they tried to procure someone else to stand in his shoes. No such question seems to have been raised at the trial, and the question what would be the measure of damages for breach of a contract to lend money is not open. But we are of opinion that there was an error in the instructions upon the question of damages. It appears from the bill of exceptions and the finding of the jury that no part of this contract between the plaintiffs and the defendant was ever performed. The plaintiffs' case was finally allowed to stand only upon the count in contract, and the jury were not permitted to consider the count in tort for a conversion of the goods. The defendant would be accountable for his goods under his contract only if he received them under the contract. The instructions to the jury, as well as the facts set out in the bill of exceptions, tend to show that he never received or held them under the contract, but that he obtained them under a...