Whitcomb v. Whitcomb

• Decision Date: 21 May 1914
• Parties: WHITCOMB v. WHITCOMB.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 558

105 N.E. 613

WHITCOMB v. WHITCOMB.

Supreme Judicial Court of Massachusetts, Middlesex.

May 21, 1914

COUNSEL

Anderson, Sweetser & Wiles and Geo. A. Sweetser all of Boston, for plaintiff.

Fred L Norton and Walter A. Ladd, both of Boston, for defendant.

OPINION

BRALEY J.

The defendant having admitted the making of the contract, on which after deducting payments a balance remained due, unless it had been mutually rescinded, the only issue tried and submitted to the jury was the question of rescission, with the burden on the plaintiff of proving an enforceable agreement. Graham v. Middleby, 185 Mass. 349, 70 N.E. 416.

The testator and promisor was the plaintiff's father and their business and paternal relations in controversy range over a period of more than five years, ending only with his death. The undisputed testimony shows that from time to time the testator had furnished to the plaintiff or on his account, exclusive of the first four installments accruing under the contract, various sums of money exceeding in the aggregate much more than the balance alleged to be due. But as these amounts are conceded to have been paid or advanced either as loans, or as gifts when the plaintiff had fallen into necessitous circumstances, the defendant relied upon the general course of dealing for the entire period, shown by the plaintiff's testimony and certain letters which passed between father and son, as being wholly inconsistent with the claim that at the testator's death the contract was binding, and as affording sufficient evidence to warrant the inference by the jury that it had been mutually abrogated or canceled. It does not seem to have been denied, the plaintiff indeed admitted, that after the date of the contract and after his severance from the company in whose management in some form the testator seems to have exerted a controlling influence, he fell into distress and solicited and received pecuniary assistance.

The record is apparently bare of any direct evidence of a mutual understanding to do away with the contract either before or after maturity. Its abrogation could be established only from evidence illustrative of the conduct of the parties, from which their intention and purpose might be gathered. The jury from their common knowledge and experience as men of affairs would have been warranted in finding that ordinarily the plaintiff would not have asked for, and obtained, his father's help where the gifts bestowed often were too small to supply adequately his immediate needs, if he had the unqualified right to insist upon and to enforce payment of an amount more than sufficient for his relief. Cogswell v. Hall, 185 Mass. 455, 457, 458 70 N.E. 461. It is manifest that the circumstances under which the parties dealt could be shown by their correspondence, and the letters introduced in evidence without objection were competent for this purpose. The jury were to determine upon all the evidence, both oral and in writing, whether the plaintiff as he testified made demands for payment which do not appear in the correspondence, or whether read in the light of his situation the letters substantially outline all of their actual financial transactions. American Malting Co. v. Souther Brewing Co., 194 Mass. 89-95, 80 N.E. 526; Brewer v. Casey, 196 Mass. 384, 388, 82 N.E. 45. We are unable, upon a careful perusal, to distinguish any material difference in relevancy of proof between these letters and certain of the letters to the exclusion of which the defendant excepted. The plaintiff's own testimony sufficiently shows that while living in Central Valley money had been sent for his support, and the letter of the testator of July 23, 1906, referring to further provision for his son 'for the coming season,' as well as the letter of March 2, 1906, the jury could find were in response to the plaintiff's previous solicitations or in recognition of understood relations between them. These letters were admissible. The excluded portion of the letter of the plaintiff of November 16, 1906, also should have been admitted. It states the plaintiff's financial situation from which the jury could inferthat he must have had in mind his assets and liabilities, yet no mention is made of any debt due from the testator, and it closes with an acknowledgment of cheques representing gifts of loans previously received. The testator's letter of October 24, 1902, and the portion in brackets of his letter to one Burr, were excluded properly. The transactions referred to in the first letter cannot be said, even in a remote degree, to have any...