O'Brien v. Cheney 5 Cush. 148, 59 Mass. 148

John O’Brien vs. Ira Cheney.

In an action to recover back money paid, on the ground that the consideration therefor had failed, the plaintiff having produced evidence, that he had paid the defendant $100 towards the purchase of a certain estate, and had taken his bond for a deed of the same, to be given on the completion of the payments therefor, and that before the completion of the payments the house was destroyed by fire; it was held, that, in order to entitle the plaintiff to recover, the burden of proof was on him to produce the defendant’s bond, and to show that he had complied with the terms thereof, by making the stipulated payments, and that the defendant had refused or neglected to make a deed according to the terms of the bond.

If one of two parties to an action on trial, being the obligor in a bond to the other, admits that a bond previously made between the same parties, had been taken back by him to correct a mistake therein, and that a new bond properly drawn was executed and accepted in lieu of the first, and the other party relies on such admission at all, he must take it in full, as proving a cancelling of the first bond and a substitution of the second bond therefor; and if he introduces the second *149bond in evidence, he cannot rely upon it merely as an admission in writing of 8 paroi contract, but must take it for what it purports to be.

This was an action of assumpsit to recover, on the money counts, a sum of money paid by the plaintiff to the defendant. The case was tried before Byington, J., in the court of common pleas, and came to this court by exceptions.

The plaintiff annexed to his writ a specification of claim, in which he set forth, that, on or about the 30th of September, 1847, the defendant made an agreement with him, to execute and deliver to the plaintiff a good warranty deed of a certain piece of land, with the buildings thereon, in Milford, when the plaintiff should have paid the defendant the sum of §500, as a consideration therefor, §100, on the delivery by the defendant of his bond conditioned to be void if the defendant should fulfil the agreement on his part, and §50, every six months thereafter, and should demand the deed at the defendant’s residence ; that, in pursuance of the agreement, the plaintiff, on or about the said 30th of September, paid the defendant §100, and took possession of the premises ; that the buildings on the premises were soon afterwards accidentally destroyed by fire, whereby the principal part of the consideration of the agreement, on the plaintiff’s part, failed; and that the plaintiff had rescinded the agreement, if there was any, and demanded the sum paid by him, and had delivered possession of the premises to the defendant: Wherefore, and because the agreement was void for fraud and misrepresentation on the part of the defendant, and for not being expressed in writing signed by the plaintiff, the plaintiff claimed the sum of money paid as above, and brought this action to recover the same.

The plaintiff introduced one Reed as a witness, who testified, that in September, 1847, he saw the plaintiff pay the defendant §100 ; that he witnessed a bond given at the same time by the defendant to the plaintiff, concerning the land for which the money was paid; that he did not hear the bargain, nor much said about the house; that he understood, that the house foi which the payment was made was in Milford, though he did not hear the parties say, that the payment was *150for the house ; that after the bond was executed, he helped tc compare it with the defendant’s deeds, in order to see that the land was correctly described in the bond; that he did not know whether the plaintiff took the bond or notthat after the plaintiff paid the money, the defendant said that if he failed to meet the payments, he would forfeit what he had paid; that the defendant did not say how many payments were to be made, but that $500 was to be paid in all, and that the remaining payments were to be made semi-annually, and it would take four years to complete the payments.

At this point in the trial, the defendant insisted that the evidence given by Reed, in connection with the specification of the plaintiff, so far showed that there was an agreement in writing between the parties, in relation to this payment, that the plaintiff ought to produce such agreement, or account for its non-production, before proceeding further with his paroi evidence as to the agreement of the parties. The plaintiff objected, that there was not sufficient evidence, that he had accepted or received the bond, or that it was ever executed, in order to require him to produce it, or account for its non-production. But the judge ruled otherwise, and required the plaintiff to produce the bond.

The plaintiff thereupon denied that he ever accepted the bond; and the defendant’s counsel then stated and admitted, that the bond witnessed by Reed, soon after its execution, and on the same day, was redelivered to the defendant by the plaintiff, because of some error therein in the description of the premises; and that a new bond, similar in all respects to the first, except that the error in the first was corrected, was executed and delivered by the defendant to the plaintiff, and was substituted and received in place of the bond first executed; and that the first bond, being thereafter of no use, was lost or destroyed, and was not in possession of the defendant.

The plaintiff then called one Grant as a witness, who testified, that at the request of the defendant, in the fall of 1847, he witnessed the defendant’s signature to a bond, which, the witness presumed from what was said, was to the plaintiff

*151The plaintiff thereupon produced and read in evidence a nond signed by the defendant, and witnessed by Grant, and proposed to make it a part of his case only as evidence of the defendant’s admission of the facts therein stated; insisting, at the same time, that he had not received or accepted it, in lieu of the first bond, and that the defendant was bound to prove that he had so accepted it.

The presiding judge ruled, that the admission of the defendant, by his counsel, must be taken all together; that in connection with the plaintiff’s possession of the second bond, and his specification of claim, it was evidence to show, that the plaintiff had accepted the second bond in lieu of the first; and that the plaintiff could not, as the case stood, restrict the effect of the bond, when given in evidence, and consider it merely as a written admission of the contract of the parties, and not as itself the contract between them.

It appeared that a demand had been made before the commencement of the action; and it was admitted, that the house on the premises in question was burned down, whilst in the possession of the plaintiff, a few weeks after the bond was executed.

The plaintiff having no further evidence to produce, the presiding judge ruled, that he could not maintain his action in the present form, and directed the jury to find a verdict for the defendant, which they accordingly did, and the plaintiff excepted.

O. Dimon, for the plaintiff.

The plaintiff’s possession of the bond produced raised nu presumption of its acceptance by him as the contract of the parties; for it was admitted and proved, that another bond, whióh had been destroyed, was the contract of the parties. And it should have been left to the jury to say whether the second bond was taken in lieu of the first; and what part of the defendant’s admission was true. 1 Greenl. Ev. §§ 201, 204. The bond was not the written evidence of the original agreement, but a collateral security for the performance thereof. It was not coextensive with the paroi agreement; it did not give the same remedy; it did not extinguish the agreement *152and did not recite, nor purport to be, the agreement. Chit. Con. 677; Banorgee v. Hovey, 5 Mass. 11; Twopenny v. Young, 3 B. & C. 208; Emes v. Widdowson, 4 Car. & P. 151; Charles v. Scott, 1 S. & R 294; White v. Cuyler, 6 T. R. 176. The paroi agreement concerning real estate not being capable of being enforced, the plaintiff, on the failure of the consideration, may recover back the money paid. Thompson v. Gould, 20 Pick. 134.

C. Cummings, for the defendant.