Proctor v. Hartigan
| Decision Date | 31 January 1887 |
| Citation | 9 N.E. 841,143 Mass. 462 |
| Parties | PROCTOR and another v. HARTIGAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Contract upon an order drawn by one James Walsh upon the defendant and by the defendant accepted in words and figures as follows:
The defendant answered a general denial, and, further, that the acceptance was conditional, and related to the last payment to be made on a contract which, at the time of said acceptance, was in force between James Walsh, the maker of the order, and the defendant; that said Walsh never performed said contract; and that no last payment ever became due and payable to said Walsh, to which said order would apply. At the trial in the superior court, before BRIGHAM, C.J., the plaintiffs, without objection, put in evidence the said order, the signatures being admitted, and introduced evidence, which was uncontradicted, that, at the time that the said order was accepted, the defendant was owing to said Walsh the sum of at least $500, and that he afterwards paid Walsh that amount, and that that sum was the last payment actually made by the defendant to Walsh under said contract. The plaintiffs also showed by evidence which was not expressly or directly contradicted that, relying upon the acceptance of said order, they furnished to Walsh, for the defendant's building, lumber to the amount of $250 after said acceptance; and that, before said acceptance, they declined to furnish any more lumber for the building unless they had paid for what they had furnished, or an order was accepted by defendant. The plaintiffs also introduced evidence of a demand upon the defendant for payment of the amount of the order, made immediately after said Walsh defaulted in his contract aforesaid, and again after said building was completed by defendant. The defendant was permitted, against the objection and exception of the plaintiffs, to introduce evidence tending to prove that the meaning of the words on the order, "to be paid out of the last payment," meant, and were understood and agreed by the parties to mean, that the order was only to be paid out of the fifth payment to Walsh, provided for in the contract, and that if Walsh did not fulfill his contract so that said fifth payment became due and payable, that the defendant would not be liable to the plaintiffs on said order. The evidence upon this point was conflicting. The defendant was also permitted, against the objection and exception of the plaintiffs, to introduce evidence that the defendant's architect, Lafield, told the plaintiff Proctor to write into the order the words, "to be paid out of the last payment under the contract;" that Proctor took the order, and wrote in the words, "to be paid out of the last payment," and returned the order to Lafield, saying that there was not room to write the rest, and that would do just as well, and that Lafield and the defendant assented to it. It was not controverted that said Walsh absconded about the first of October, and did not complete the building according to the contract. It was also conceded that, at the time Walsh abandoned the work, the defendant had paid him in all $1,300; the last $500 of it having been paid after the acceptance of said order, and that that was the last payment that ever became due to Walsh from the defendant, or that was paid to him on account of said contract; that the entire contract price for said building, as by said contract, was $2,700. It was also in evidence, uncontroverted, that after Walsh had absconded, and abandoned the contract, the plaintiffs went to the defendant, and offered to complete the building according to Walsh's contract for the sum of $1,200,--but whether plaintiffs offered to apply the order in suit as a payment of $500 towards said $1,200 was in dispute,--which offer the defendant declined, and completed the building by hiring the work done by days' work. The building was so completed by the defendant, and has since been occupied by him.
The plaintiffs requested the court to charge the jury as follows: First. The order is evidence of an assignment by Walsh of so much of his money, in the hands of the defendant, to the plaintiffs, and the acceptance by the defendant is evidence that he would owe so much money, and this is a direct contract between the defendant and the plaintiffs to pay a certain sum at a time after the acceptance. Second. The direction to be paid out of the last payment is a designation of the funds out of which the payment was to be made; and, if payment was due to Walsh after the acceptance which he received, then the defendant is liable. Third. The direction to be paid out of the last payment is a designation of the funds out of which the payment was to be made; or, if a payment was due to Walsh after that, that must be regarded as the last payment to Walsh, unless another payment actually became due, and the defendant would be liable upon the acceptance of the order to the plaintiffs, and would be entitled to deduct the amount of the order from said payment. Fourth. Even if this was a part of the order, it was by no means a condition precedent to the right of action by the plaintiffs that Walsh should complete the contract personally, and the defendant could complete it; and, after taking out his expenses in so doing, he would be bound to apply the balance in the same manner as he would have done had Walsh completed the contract; and in completing it himself he became liable to follow the contract, and not vary it, and use reasonable care for the benefit of the plaintiffs. Fifth. If the jury should find that, by the terms of the order, the money was to be paid out of the last payment under the contract existing between Walsh and Hartigan, and also find that Hartigan, in completing the building after Walsh left, did not follow the contract, but varied it, he abandoned the contract; and if, after the giving of the order to the plaintiffs, he paid Walsh the sum equal to the amount of the order, and it was the last payment he paid him, this was the last payment under the said contract, and he should be held liable. Sixth. It is immaterial whether Walsh completed the contract, or whether the defendant completed it. If, after this order was accepted, there was at any time the sum of $500, or any other sum, due Walsh from the defendant under the contract, the defendant had no right to pay it, or any part of it, to Walsh, with the knowledge and consent of the plaintiffs, but that it was his duty to retain the amount of the order on defendant's final or last settlement with and payment to Walsh, and pay the same to plaintiffs; that the defendant, after accepting the said order, had no right to make any advance to Walsh that should reduce the sum due Walsh on the final settlement below the amount of the order.
The court declined to give either of said requests, but instructed the jury that, under the pleadings, the verdict of the jury must be for the defendant, if, at the time of the acceptance, the words "to be paid out of the last payment" were understood and agreed by the parties to the order to refer to the last payment called for by the contract, and that if they believed the words "to be paid out of the last payment" were understood and agreed by the parties to refer to the last payment called for by the contract with Walsh, and if Walsh failed to complete the contract without fault on the part of the defendant, the time of payment never arrived, and the fund from which payment was to be made never existed, and the defendant is not liable on this acceptance under these pleadings; and also instructed the jury that, by the legal effect of the words "to be paid out of the last payment," considered in connection with the contract between defendant and Walsh, the order is not payable until 30 days after Walsh had fulfilled that contract, and then out of the $800, the fund which then would become due to Walsh. The jury returned a verdict for the defendant; finding specially that the defendant...
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