Watkins v. Bowers

• Decision Date: 07 January 1876
• Citation: 119 Mass. 383
• Parties: Ledyard A. Watkins v. Philip B. Bowers
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 383

Ledyard A. Watkins v. Philip B. Bowers

Supreme Court of Massachusetts

January 7, 1876

Argued October 28, 1875 [Syllabus Material]

Bristol. Contract upon a promissory note, for $ 752.30, dated August 10, 1874, made by the defendant, payable to the order of the plaintiff in two months from date.

At the trial in the Superior Court, before Pitman, J., the only questions for the jury, under the ruling of the judge, were whether any contract was entered into between the parties and whether there was or not a want or failure of consideration.

The evidence of the defendant, which was admitted against the plaintiff's objection, on the ground that it was an attempt to alter or control a written contract by oral evidence, and for other reasons, was in substance as follows The defendant testified that he had been solicited by the plaintiff, who was an agent of the Phenix Mutual Life Insurance Company of Hartford, to take out a policy on his life; that on August 10, 1874, the plaintiff came to his house and introduced to him G. E. Holloway, the general agent of the company, to whom he said that if he intended to get insured he would see him at Fall River. Watkins or Holloway inquired how long time he wanted to make up his mind to be insured, and he replied that he could not tell, it might be longer or shorter. Holloway then said: "I will do this. It is something I will not allow my agents to do. I will take out an application for a policy, and if it is accepted by the company I will send you a policy, and I will give you sixty days to make up your mind whether you will be insured or not, and if at the end of sixty days you make up your mind not to be insured, you may notify Watkins, and he will come and bring the papers and take the policy, and it shall not cost you a cent." He finally accepted the offer. Holloway placed the note before him and asked him to sign it. He then said he would not sign it. Holloway said it would not be binding unless he decided to keep the policy and be insured. The defendant said, "If I sign this note shall I not be held to pay it?" and Holloway said, "No, this is a conditional transaction; you will not be holden unless you decide to keep the policy and be insured. It will not be binding any way."

He also testified that on these assurances he signed the note; that before that, during the conversation, he had signed, under the circumstances stated, the application for a $ 10,000 policy from the company, and a physician had examined him and certified thereon; (which application and certificate were produced in court and went in on cross-examination as evidence;) that when he signed the application the plaintiff said it was not binding, but it was necessary for him to sign it or the company would take no notice of it; that the defendant told the plaintiff he should not sign any papers that should be binding on his part; that the plaintiff took the note and application; that as the party were leaving the house Holloway remarked, "I consider you insured for sixty days." The defendant said, "No, I do not consider myself insured until I decide whether I will be or not."

The defendant further testified that about a week afterwards Watkins called at his house and left the policy there with his wife, the defendant being absent at the time; that on his return the same day he saw it there; that in about two weeks from the time it was left there he saw Watkins in Fall River, and told him he should not keep the policy; that in a few days after that conversation Watkins called at his house, and he told him what the understanding was, that he wanted him to return his papers and he give up the policy. Watkins replied that he knew all about it and should do just as he had agreed to, but wanted him to keep the policy.

The defendant further testified, against the special objection of the plaintiff as to its competency in any view of the case that he had taken the policy to Fall River previously to his seeing Watkins there, and had endeavored to find Watkins; that he did not know that he had any office or house; that he excepted to find him; that he looked around for him on September 26, and on Wednesday, September 30, and tried to find him but could not; that on October 2, he went to Fall River, having the policy with him, and met Watkins...