Burns & Smith Lumber Co. v. Doyle

• Decision Date: 01 June 1899
• Citation: 43 A. 483,71 Conn. 742
• Court: Connecticut Supreme Court
• Parties: BURNS & SMITH LUMBER CO. v. DOYLE.

43 A. 483

71 Conn. 742

BURNS & SMITH LUMBER CO.

v. DOYLE.

Supreme Court of Errors of Connecticut.

June 1, 1899.

Appeal from court of common pleas, Fairfield county; Howard J. Curtis, Judge.

Action by the Burns & Smith Lumber Company against Thomas A. Doyle on a bill of exchange. Judgment for defendant, and plaintiff appeals. Error, and new trial granted.

The following is a copy of the bill of exchange counted upon in the complaint: "Bridgeport, Conn., June 24, 1893. Mr. Thomas Doyle: Please pay to the Burns & Smith Dumber Co. or order the sum of four hundred and twenty ($420.00) and no/100 dollars, value received, and charge the same to my account. E. P. Mills. Accepted June 24, 1893. Thos. A. Doyle." The answer, as finally amended, consisted of two defenses, as follows: "First defense: (1) The defendant accepted the bill of exchange, at the solicitation of the plaintiff, upon the express condition that only upon the defendant becoming indebted for services to the drawer of said bill should the defendant be called upon to pay or be made liable upon said bill of exchange. (2) The defendant says he is not liable upon said bill because the drawer of the same never performed any service for the defendant, nor did the defendant become indebted to said drawer after said acceptance of said bill. Second defense: (1) The defendant says that, at the time of the said acceptance of said bill, he did not owe the drawer of said bill, or the plaintiff, or either of them, upon any demand whatever, and that said acceptance was known to the defendant and to said plaintiff to be wholly without consideration, and that said plaintiff is not a bona fide holder for value of said bill of exchange. (2) The matters contained in the first defense are made part of this defense." The reply was a general denial.

The substance of the finding is as follows: On June 24, 1893, Mills, the drawer of the bill in suit, was engaged in building a cottage for the defendant under a written contract, by the terms of which Mills was to be paid therefor $920, in three payments, due at stated stages in the progress of the work. The last payment, of $420, was due when the building was completed and accepted. On the day aforesaid the cottage had not been completed, but had passed the point where the second payment had become due and had been paid. At this time Mills owed the plaintiff about $1,000 for lumber, some of which had been used in the cottage, and on the aforesaid day he gave the plaintiff the bill sued upon. On the same day the plaintiff called upon the defendant, and requested him to accept the bill. At that Interview the defendant told the plaintiff that the cottage was not completed, that the last payment thereon of $420 would not be due until the house was completed, and that the defendant then owed Mills nothing. The defendant thereupon agreed to accept said order upon condition that it should not become obligatory upon him to pay the same until Mills completed the house and said sum became due him. The defendant thereupon, in pursuance of said agreement, wrote, "Accepted June 24, 1893, Thos. A. Doyle," across the face of the order, and Burns received the same subject to said condition. After giving this writing to the plaintiff, Mills did no more work upon the house, and it was completed by another, at an expense to the defendant in excess of $420. "There was no consideration for the acceptance other than such, if any, as appears above." The defendant never paid the bill so accepted. The plaintiff objected to the introduction of any parol evidence to prove the allegations of the defenses, or either of them, and to all evidence tending to prove the foregoing facts, except the fact of acceptance. The court overruled the objection, and admitted the evidence. The plaintiff also claimed that upon the facts found judgment should be rendered in its favor, and the court overruled this claim. The reasons of appeal are based upon these adverse rulings.

Louis K. Gould, for appellant.

John J. Phelan, for appellee.

TORRANCE, J. (after stating the facts). The acceptance sued upon is in writing, and is an absolute and unqualified one, as distinguished from a conditional one. It is well settled that, in an action at law, such an acceptance cannot be cut down to a conditional one by the clearest proof of a contemporaneous oral agreement to that effect. Such an agreement, however conclusively proved, would not avail the defendant for such a purpose, and therefore all evidence of it is excluded. Osborne v. Taylor, 58 Conn. 439, 20 Atl. 605; Averill v. Sawyer, 62 Conn. 560, 27 Atl. 73; Caulfield v. Hermann, 64 Conn. 325, 30 Atl. 52; Hills v. Town of Parmington, 70 Conn. 453, 39 Atl. 795. But if the written acceptance was delivered to the plaintiff upon an oral condition, assented to by the plaintiff, that it was not to become operative, or have any existence at all as an acceptance, until the cottage was completed and the money became due to Mills, that condition, if proved, would avail the defendant, and, under proper pleadings, evidence...