MILLS
v.
DOW'S ADMINISTRATOR.
No. 151.
Supreme Court of United States.
Submitted December 9, 1889. Decided March 3, 1890. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.*428 Mr. George S. Hale and Mr. A.G. Stanchfield, for plaintiff in error.
Mr. Stillman B. Allen and Mr. Montressor T. Allen for defendant in error.
*430 MR. JUSTICE BLATCHFORD, after stating the case as above, delivered the opinion of the court.
The plaintiff alleges as error (1) the refusal of the court to admit the evidence offered as to the consideration of $15,000, *431 as to the promise to pay the balance of it, and as to the promise to pay the debts due to Hall and Burgess; (2) the ruling that the plaintiff could not recover without showing some actual payment or injury, other than his liability to Hall and Burgess so due and made known to the defendants; (3) the ruling that there was no competent evidence to sustain the plaintiff's case; and (4) the withdrawal of the case from the jury and the direction of a verdict for the defendant Dow.
As the subject matter of the instrument of October 23, 1878, was in Massachusetts, and the defendant Dow was a resident there, and the contract was made there, and the suit was brought there, the law of that State is to govern in expounding and enforcing the contract and in determining the rule of damages for a breach of it.
It is contended by the defendant that the instrument contains an admission of the receipt of the entire $15,000; and the question on this branch of the case is whether the plaintiff is precluded from showing the true state of facts. It is well settled in Massachusetts, that a recital in a deed, acknowledging payment of the consideration stated, is only prima facie proof, and is subject to be controlled or rebutted by other evidence. Paige v. Sherman, 6 Gray, 511, 513; Wilkinson v. Scott, 17 Mass. 249; Carr v. Dooley, 119 Mass. 294, 296.
Independently of this, the expression in the instrument which is claimed to be an acknowledgment of the receipt of the $15,000, namely, "which said sum of fifteen thousand dollars the said Dow and Pratt have this day advanced and paid to said Mills," is ambiguous, and does not show actual prior or simultaneous payment. Goldshede v. Swan, 1 Exch. 154.
So, too, the evidence of a promise by the defendants, as a part of the consideration of the instrument, to pay the debts which the plaintiff owed to Hall and others named in it, was admissible; and the refusal of the defendants to pay those debts on demand was a breach of their contract. Clark v. Deshon, 12 Cush. 589, 591.
The issue being whether the consideration had been paid and whether the obligation of the defendants was broken, it was competent for the plaintiff to show by parol that, after *432 Hall and Burgess had finished their work under their sub-contract, they stated their account to the plaintiff and demanded payment from him; that he notified the defendants and made demand on them; and that they neglected to pay. Such demand, and a neglect on their part to pay, tended to support the case of the plaintiff.
The balance due by the plaintiff to Hall and Burgess was $11,048.08, with interest from January 1, 1879; and that was the amount of the liability of the plaintiff to them under his contract with them. The agreement of the defendants, in the instrument of October 23, 1878, is that they assume the contract between the plaintiff and the company, and that they will well and truly save the plaintiff harmless from any and all liability by reason of his contracts with Hall and Burgess, Ellis and Savage and McCabe, "the ten per cent re served," and any claim by reason of such contracts.
The agreement to assume the contract, in connection with the further agreement to save the plaintiff harmless from liability, was broken by a failure to pay the parties to whom the plaintiff was liable, and it was not necessary to a breach that the plaintiff should show that he had first paid those parties. Braman v. Dowse, 12 Cush. 227; Locke v. Homer, 131 Mass. 93; Drury v. Tremont Improvement Co., 13 Allen, 168, 171; Stewart v. Clark, 11 Met. 384; Preble v. Baldwin, 6 Cush. 549; Smith v. Pond, 11 Gray, 234; Paper Stock Co. v. Boston Disinfecting Co., 147 Mass. 318.
By the instrument in question, the defendants took the place of the plaintiff, and became, after the instrument was executed, principals in the work of constructing the railroad; and their acceptance of the assignment and the conditions preceding it included the sub-contracts and what was due and to become due upon them. The contract is not merely one to indemnify the plaintiff from damage arising out of his liability, but is an agreement to assume his contracts and to discharge him from his liability. Gilbert v. Wiman, 1 Comstock, 550; Noble v. Arnold, 23 Ohio St. 264, 271; Carr v. Roberts, 5 B. & Ad. 78; Chase v. Hinman, 8 Wend. 452; Rockfeller v. Donnelly, 8 Cowen, 623; Randall v. Roper, 27 Law *433 J.N.S.Q.B. 266; Warwick v. Richardson, 10 M. & W. 284; Port v. Jackson, 17 Johns. 239; Wicker v. Hoppock, 6 Wall. 94; Lathrop v. Atwood, 21 Conn. 117, 125.
The case is not open to the objection that the plaintiff endeavored to extend and enlarge by parol the provisions of a written instrument under the guise of proving its consideration; and the cases on that subject do not apply.
Although the instrument in question states that the defendants have agreed to receive from the plaintiff an assignment of the plaintiff's contract with the railroad company "in trust for said company;" that the defendants "assume said contract in their capacities aforesaid;" that they have paid the $15,000 "in their capacity aforesaid," and the assignment is made to them "as aforesaid;" and that the plaintiff appoints them, "trustees as aforesaid," his attorneys; and although they "as aforesaid accept the assignment," their agreement to save the plaintiff harmless from any and all liability by reason of the contracts named is an absolute personal agreement on their part.
The judgment is reversed, and the case is remanded to the Circuit Court with a direction to award a new trial.