Wellington v. Apthorp
| Decision Date | 24 September 1887 |
| Citation | 13 N.E. 10,145 Mass. 69 |
| Parties | WELLINGTON v. APTHORP, Adm'r. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.S. Patton, for plaintiff.
An auditor's report is not only prima facie evidence of the facts stated in it, upon which the jury may, if those facts show that the plaintiff is entitled to recover, find a verdict for the plaintiff, but is so far conclusive that the jury is bound so to find, unless the report is rebutted or overbalanced by other evidence. Allen v. Hawks, 11 Pick. 361; Bradford v. Stevens, 10 Gray, 379. In jury-waived trials, the court is equally bound thereby in making its findings of fact. Pub.St. c. 167, § 69. There was no evidence in this case rebutting, contradicting, or modifying the auditor's report. The facts stated in it are therefore to be taken as proved or admitted as true, and were so treated by the justice who heard the case.
The auditor found, in express terms, that her proposition, and the plaintiff's assent thereto, was an "agreement." There was an explicit offer by Mary Chism, accepted by the plaintiff, which thereupon became a binding promise on her part. Hubbard v. Coolidge, 1 Metc. 84. There was a good and sufficient consideration for the promise at the time it was made. The services theretofore rendered her by the plaintiff had been rendered at her request, and upon her promise to compensate him for them, and formed with his assent a sufficient consideration for the new promise. Lampleigh v. Brathwait, 1 Smith Lead.Cas. (8th Ed.) 268. The plaintiff's acceptance of her offer made a complete contract, in which his promise to accompany her on her visit formed a sufficient consideration for her promise. Railroad v. Bartlett, 3 Cush. 225; Backus v. Spaulding, 116 Mass. 418; Hubon v. Park, Id. 541. Even if the parties did not enter into a mutual agreement at the time her promise to compensate him in the manner proposed by her became upon his performing the acts and services in consideration of which the promise was made, and her acceptance of the same, a binding agreement on her part to make a will giving the plaintiff $5,000, and pay his expenses of the journey. Goward v. Waters, 98 Mass. 596; Marie v. Garrison, 83 N.Y. 14; Storm v. U.S., 94 U.S. 83.
Where services are rendered at the request and for the benefit of another, and upon his promise to pay for them, the law will imply that they were gratuitous. Expressum facit cessare tacitum. The finding in the plaintiff's favor for the amount of cash paid out by him was in accordance with Mary Chism's agreement to pay his expenses, and was therefore correct. As the proposition to make a will in plaintiff's favor was made in the same breath, and upon the same considerations and conditions, as the proposition to pay the plaintiff's expenses, both should stand or fall together. If the finding as to the expenses was right, then the finding that there was no binding agreement to make a will was wrong, and there should have been a finding for the plaintiff on that issue also.
If Mary Chism did agree, for a sufficient consideration, to make a will giving the plaintiff $5,000, the court was bound to construe and interpret that agreement, i.e., determine its legal effect as a matter of law, and could not find its meaning and effect as a matter of fact. Pratt v. Langdon, 12 Allen, 544; Short v. Woodward, 13 Gray, 86; Globe Works v. Wright, 106 Mass. 216.
The true construction and interpretation of Mary Chism's agreement to make a will, giving the plaintiff $5,000, is that she was to make and leave a will which would give him that sum at her death. Every contract is to be construed according to the true intent of the parties to it, which intent is to be ascertained from the language used, in the light of the circumstances under which the contract was made. Gray v. Clark, 11 Vt. 583. When there is any ambiguity in the language of a contract, such construction and interpretation should be given to it as to make it operative and effectual, on the ground that the parties intended that result, rather than that it should be inoperative, ineffectual, frivolous, or meaningless. Story, Cont. (5th Ed.) §§ 781, 784; Thrall v. Newell, 19 Vt. 202; Patrick v. Grant, 14 Me. 233; Archibald v. Thomas, 3 Cow. 284; Lilly v. Ewer, 1 Doug. 72; Atwood v. Cobb, 16 Pick. 227; White v. Snell, 5 Pick. 425. If there is any doubt as to the meaning of the words, "would make a will giving $5,000" to the plaintiff, they should be construed most strongly in favor of the plaintiff, who has been misled by and spent his time upon the strength of them. Barney v. Newcomb, 9 Cush. 46.
A promise, upon a sufficient consideration, to bequeath a legacy to the promisee, is valid. Canada v. Canada, 6 Cush. 15; Ridley v. Ridley, 34 Beav. 478; Jenkins v. Stetson, 9 Allen, 128. Such a promise, though not in writing, is not within the statute of frauds. Peters v. Westborough, 19 Pick. 364; Doyle v. Dixon, 97 Mass. 208; Bell v. Hewitt, 24 Ind. 280; King v. Hanna, 9 B.Mon. 369.
A.M. Howe and T.J. Homer, for defendant.
The plaintiff's claim rests upon Mary Chism's alleged promise, which was not in any sense a contract, but merely a representation of present intention concerning a state of facts not actually in existence at the time she spoke, and, there being no evidence of fraud on Mary Chism's part, her representative, the defendant in this case, is not estopped to deny the liability of her estate. Maunsell v. White, 4 H.L.Cas. 1039; Jorden v. Money, 5 H.L.Cas. 214, 219; Maddison v. Alderson, 8 App.Cas. 467, 470, 473, 485, 491; overruling Loffus v. Maw, 3 Giff. 603; Langdon v. Doud, 10 Allen, 436; Jackson v. Allen, 120 Mass. 79. The plaintiff's undertaking was such that it could not form a good consideration, which would support Mary Chism's promise. Taylor v. Brewer, 1 Maule & S. 290; Roberts v. Smith, 4 Hurl. & N. 320. The representations of Mary Chism did not lead the plaintiff to alter his position. He continued to act as he had done; and, as he did not abandon any rights, he cannot now hold the estate of Mary Chism under the doctrine of estoppel by representation. Jorden v. Money, supra; Insurance Co. v. Mowry, 96 U.S. 544. The facts and circumstances of this case show that the services performed, and to be performed, by the plaintiff, were not such that the law would imply a promise to pay the reasonable value of benefits received therefrom. There is evidence tending to show that all the transactions alleged to have taken place were family affairs, concerning which the plaintiff, as a brother-in-law, acted gratuitously for the good of all concerned. Therefore, the judge below was right in finding the evidence insufficient to constitute a binding agreement. Guild v. Guild, 15 Pick. 130; Spring v. Hulett, 104 Mass. 591; James v. Cummings, 132 Mass. 78. Even upon the supposition that there was a contract, it was not proved to be a contract to make a will which should not be revoked. Woodbury v. Woodbury, 141 Mass. 329, 5 N.E. 275; Cuthbertson's Appeal, 97 Pa.St. 163; Bridgeman v. Green, Wilm. 58, 61. The judge below erred in finding that the plaintiff is entitled to $473.24, with interest from the date of the writ, for the expenses of his journey to California. If there was not enough evidence to sustain a binding agreement, then the whole claim of the plaintiff failed, and the journey, which the plaintiff took at his own option, he should pay for, and not Mary Chism's estate.
OPINION
It is not contended, on behalf of the defendant, that a contract, founded on a sufficient consideration, to make a certain provision by will for a particular person, is invalid in law. The contrary is well settled. Jenkins v. Stetson, 9 Allen, 128, 132; Parker v. Coburn, 10 Allen, 83; Canada v. Canada, 6 Cush. 15; Parsell v. Stryker, 41 N.Y. 480; Thompson v. Stevens, 71 Pa.St. 161; Updike v. Ten Broeck, 32 N.J.Law, 105; Caviness v. Rushton, 101 Ind. 502.
Nor is it contended that a contract to leave a certain amount of money by will to a particular person, though oral, is open to objection under the statute of frauds. It is not a contract for the sale of lands, or of goods; and it may be performed within a year. Peters v. Westborough, 19 Pick. 364; Fenton v. Emblers, 3 Burrows, 1278; Ridley v Ridley, 34 Beav. 478; Kent v. Kent, 62 N.Y. 560; Bell v. Hewitt, 24 Ind. 280; Wallace v. Long, 5 N.E.Rep. 666. Such a contract differs essentially from a contract to devise all one's property, real and personal, which comes within the statute of frauds. Gould v. Mansfield, 103 Mass. 408. The obligation of such a contract is not impaired, though the consideration is to arise wholly or in part in the future, and though the person to whom the promise is made is under no mutual, binding obligation on his part. In Train v. Gold, 5 Pick. 380, 385, it was said by Mr. Justice WILDE that "if A. promises to B. to pay him a sum of money if he will do a particular act, and B. does the act, the promise thereupon becomes binding, although B., at the time of the promise, does not engage to do the act." This doctrine was quoted with approval in Gardner v. Webber, 17 Pick. 407, 413, and in Bornstein v. Lans, 104 Mass. 214, 216; and it is also affirmed in Goward v. Waters, 98 Mass. 596. In Cottage Street Church v. Kendall, 121 Mass. 528, 530, it was held that, "where one promises to pay another a certain sum of money for doing a particular thing, which is to be done before the money is paid, and the promisee does the thing upon the faith of the promise, the promise, which was before but a mere revocable offer, thereby becomes a completed contract, upon a consideration moving from the promisee to the promisor; as in the ordinary case of the offer of a reward." See, also, Paige v. Parker, 8...
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