Radigan v. Johnson

• Decision Date: 01 July 1899
• Citation: 54 N.E. 358,174 Mass. 68
• Parties: RADIGAN v. JOHNSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 68

54 N.E. 358

RADIGAN v. JOHNSON.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1899

The action was for conversion of certain horses and carriages used by plaintiff in conveying passengers in the city of Boston, and boarded and stored by her with defendant a livery stable keeper. Defendant having asserted a claim for statutory lien on the horses, and refused to allow them to be taken from the stable, the following contract was executed "Boston, Oct. 9, 1897. I relinquish to S.A. Johnson all claim on the three horses, one Kimball landau, and one Bennett coupe, now in his possession, until his claim of $439.99 for board and care is paid in full, and which I agree to do by weekly payments of $15. The board from this date to be paid weekly. E.F. Radigan. Julia A. Radigan." Payments were made both on "new" board and on the contract, but not in the sums or at the times due, until January 21, 1898, when defendant again asserted his statutory lien, and, on plaintiff making a payment of $100, receipted for it "on account," but refused to permit plaintiff to take the horses from the stable until the whole bill was paid. The $100, if applied on the contract, would cover the installments then due. Shortly thereafter plaintiff tendered the amount due on the "new board," and demanded the privilege of using the property as she had been permitted under the contract, which was refused until the whole of the old board was paid.

COUNSEL

W.M. Noble, for plaintiff.

A.H. Russell and E.M. Moore, for defendant.

OPINION

MORTON J.

The testimony that was offered by the plaintiff for the purpose of showing that the defendant agreed that, if the plaintiff would have the release drawn and signed, and handed to him he would then permit her to go on using the horses in the ordinary course of business, was a plain attempt to engraft upon the written contract an oral agreement contemporaneous with it, and was inadmissible. It tended to vary the contract as written by introducing into it another stipulation. This could not be done under the guise of showing what the consideration was. Pike v. McIntosh, 167 Mass. 309, 45 N.E. 749; Knowlton v. Keenan, 146 Mass. 86, 15 N.E. 127; Simanovich v. Wood, 145 Mass. 180, 13 N.E. 391; Howe v. Walker, 4 Gray, 318. We think that the transaction was in the nature of a pledge of the property described in the contract as security for the payment of the sum named at the rate of $15 per week. Thompson v. Dolliver, 132 Mass. 103; Walker v. Staples, 5 Allen, 34. Upon the failure or neglect of the plaintiff...