Wood v. Blanchard

• Decision Date: 25 May 1912
• Parties: WOOD v. BLANCHARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 53

98 N.E. 616

WOOD v. BLANCHARD.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1912

COUNSEL

R. G. Dodge and H. S. Davis, both of Boston, for plaintiff.

W. R Bigelow, of Boston, for defendant.

OPINION

RUGG C.J.

The fair interpretation of that which occurred at the close of the evidence when the defendant's requests for rulings were presented is that the suggestion of the court, to the effect that in order to present the issues fairly both parties needed to amend their pleadings, was adopted by both parties. The result was that an amendment to the declaration and an amendment to the answer were filed. The case was submitted to the jury on the amended pleadings. The other counts dropped out of the case. This is equivalent to the contention of the defendant that his first four prayers were granted. At all events, it is plain that the judge of the superior court did not treat anything as open except the amended pleadings, and the parties acceded to this without objection.

The case of the plaintiff then rested upon an alleged breach by the defendant of a written agreement, signed by both parties of the following tenor: 'Agreement made this eighteenth day of December, 1900, between Fred F. Blanchard of Malden, Mass. and Henry Wood of Natick, Mass. whereby it is mutually agreed and understood that the said Wood is to receive 25 per cent. of all net profits accruing from estates Nos. 51, 53, 55 and 61 Glenwood Ave. Malden, Mass. (which is to be derived from the improvement and development of said property), in consideration for the loan of $1,000 secured by second mortgage on said premises.' A large amount of evidence was introduced without objection or exception showing the circumstances of the parties at the time when this agreement was made. It is not necessary to decide whether all of this evidence as to the terms of the agreement between the parties was competent as relating to separate or collateral matters as to which the document was silent (Durkin v. Cobleigh, 156 Mass. 108, 30 N.E. 474, 17 L. R. A. 270, 32 Am. St. Rep. 436), or as tending to explain ambiguous parts of the contract (Jennings v. Puffer, 203 Mass. 534, 89 N.E. 1036), for being admitted without objection it was entitled to its probative force, and properly was considered by the jury. Hubbard v. Allyn, 200 Mass. 166, 86 N.E. 356.

There was evidence from which the jury might have found that the agreement between the parties, in addition to that stipulated in writing, was that the defendant should give to the plaintiff his personal note secured by a mortgage upon the real estate in question, and that he should use the money advanced to him by the plaintiff in the improvement of the real estate, and that there was a breach of this agreement by the defendant. It follows that the request of the defendant to the effect that the plaintiff could not recover upon the written contract, but must bring an action for an...