Statement of the Case.

and Burgess, partly for work done prior to October 23, 1878, and partly for work done subsequently to that date. Dow was informed of the amount so due to the sub-contractors, and that the same had never been paid.

The bill of exceptions, after stating the foregoing facts, set forth that the plaintiff offered to show by Hall, for the purpose of proving an independent oral contract based on an alleged liability of Dow as stockholder, that Dow repeatedly promised Hall, in 1879 and subsequently, that he would pay the amount claimed to be due to Hall and Burgess, but the court refused to admit the evidence at that stage of the case, on the ground that there was no evidence of a consideration for the promise, and that the liability, and the fact that Dow was a stockholder, must first be shown; that the plaintiff offered to show, by his own evidence, that the consideration of the instrument of October 23, 1878, was the payment of $15,000; that the defendants promised to pay him that sum as such consideration and had paid only $10,000 of it, the plaintiff claiming that, by the terms of the instrument, the defendants were bound to pay the whole of such consideration, and that, on proof that the consideration was $15,000, and was partially unpaid, he would be entitled to recover; that the court ruled that the inquiry was irrelevant, on the pleadings and proofs as they then stood; that the plaintiff offered further to show that, as a part of the consideration of the instrument, the defendants promised to pay the debts the plaintiff owed to Hall and others named in the instrument; and that the court refused to admit the evidence.

The bill of exceptions stated, also, that there was evidence tending to show that the defendants were stockholders and directors of the company, and Dow was its president, from May 1, 1878, to June 1, 1879; that Hall had authority from the plaintiff to collect from the defendants the amounts due to the sub-contractors; that Dow, at the request of the plaintiff, paid to one or more of the sub-contractors, subsequently to October 23, 1878, the amount due them for work done on the road and had also paid to the plaintiff the amount of a judg ment recovered against the latter by Savage and McCabe, in

Citations for Plaintiff in Error.

a suit brought by them subsequently to October 23, 1878, for work done by them under their sub-contract, which amount the plaintiff never paid to Savage and McCabe, and no claim was made for it in this suit; that, before this suit was brought, the sub-contractors demanded their pay from the plaintiff, showing him a statement of their account, and also made a demand on the defendants, and the plaintiff made a like demand on them; that as between the plaintiff and the sub-contractors, there was no dispute as to the amount due; that the company voted to stop the work of construction on the road about the middle of December, 1878, and never resumed the work of construction after that date; that Hall and Burgess did not complete their contract within the time stipulated in it, for the reason, among others, that the company did not meet its payments and never secured the right of way for the portion not constructed by it; and that no evidence was introduced by the plaintiff that he had paid any portion of the sums due the sub-contractors named in the instrument of October 23, 1878. The plaintiff having closed his case, the defendant Dow contended that the plaintiff could not recover without first showing some actual payment or injury other than his liability to Hall and Burgess, so due and made known to the defendants; and that the same had not been paid. The court ruled that there was no competent evidence to sustain the plaintiff's case, and directed a verdict for the defendant Dow.

The bill of exceptions further stated that the plaintiff duly excepted at the trial to such rulings, refusals to rule, and direction of the court.

Mr. George S. Hale and Mr. A. G. Stanchfield, for plaintiff in error, cited: Middlesex Co. v. Osgood, 4 Gray, 447; Young v. Raincock, 7 C. B. 309; Cox v. United States, 6 Pet. 172; Consequa v. Willing's Heirs, Pet. C. C. 225; Galvin v. Thompson, 13 Maine, 367; Paige v. Sherman, 6 Gray, 511; Wilkinson v. Scott, 17 Mass. 249; Carr v. Dooley, 119 Mass. 294; Schillinger v. McCann, 6 Greenl. 364; Beach v. Packard, 10 Vermont, 96; S. C. 33 Am. Dec. 185; Shepard v. Little, 14 Johns. 210; M'Crea v. Purmort, 16 Wend. 460; S. C. 30 Am. Dec. 103;

Argument for Defendant in Error.

Pritchard v. Brown, 4 N. H. 397; S. C. 17 Am. Dec. 431; Belden v. Seymour, 8 Connecticut, 304; S. C. 21 Am. Dec. 661; Watson v. Blaine, 12 S. & R. 131; S. C. 14 Am. Dec. 669; Gully v. Grubbs, 1 J. J. Marsh. 387; Goldshede v. Swan, 1 Exch. 154; Hubon v. Park, 116 Mass. 541; Aldrich v. Ames, 9 Gray, 76; Clark v. Deshon, 12 Cush. 589; Braman v. Dowse, 12 Cush. 227; Carr v. Roberts, 5 B. & Ad. 78; Stout v. Folger, 34 Iowa, 71; Lathrop v. Atwood, 21 Connecticut, 117; Locke v. Homer, 131 Mass. 93; Stewart v. Clark, 11 Met. 384; Preble v. Baldwin, 6 Cush. 549; Smith v. Pond, 11 Gray, 234; Paper Stock Disinfecting Co. v. Boston Disinfecting Co., 147 Mass. 318; Gilbert v. Wiman, 1 Comstock (1 N. Y.) 550; S. C. 49 Am. Dec. 359; Calvo v. Davies, 8 Hun, 222; Warwick v. Richardson, 10 M. & W. 284; Hodgson v. Wood, 2 Hurl. & Colt. 649; Port v. Jackson, 17 Johns. 239, cited in Wicker v. Hoppock, 6 Wall. 94; Wood v. Wade, 2 Starkie, 167; Greenleaf v. Birth, 9 Pet. 292; Schuchardt v. Allens, 1 Wall. 359; Hickman v. Jones, 9 Wall. 197; Farnum v. Davidson, 3 Cush. 232; United States v. Tillotson, 12 Wheat. 180; Gibbons v. Farwell, 63 Michigan, 344; Doane v. Lockwood, 115 Illinois, 490; Jones v. Vanzandt, 2 McLean, 596; Battis v. McCord, 70 Iowa, 46.

Mr. Stillman B. Allen and Mr. Montressor T. Allen for defendant in error.

I. Under a general denial in the answer the plaintiff must prove each material allegation in the declaration. Rodman v. Guilford, 112 Mass. 405. There is nothing admitted by the answer except the making of said agreement. The questions concerning the admissibility of evidence arise solely upon the allegations contained in the plaintiff's declaration. What the plaintiff is estopped from proving, the defendant need not plead specially.

II. By the evidence offered the plaintiff endeavored to extend and enlarge the provisions of a written contract under the guise of proving by parol its consideration. It is perfectly well settled that a grantor is not absolutely bound by the consideration or the acknowledgment of its payment expressed in his deed, because the consideration is known to be arbitrary,

Opinion of the Court.

and a receipt is always open to explanation; and this acknowledgment, although under seal, is nothing more than a receipt, for the seal gives it no additional solemnity. Wilkinson v. Scott, 17 Mass. 249; Howe v. Walker, 4 Gray, 318.

In Flynn v. Bourneuf, 143 Mass. 277, Holmes, J., asserts that the authority of Howe v. Walker, ubi supra, is unshaken, and distinguishes it from Carr v. Dooley, 119 Mass. 294, Preble v. Baldwin, 6 Cush. 549, and similar cases.

III. The recital that the $15,000 has been paid is an estoppel upon the plaintiff to deny that fact on the faith of which the assignment was accepted, and so far as concerns the plaintiff this estoppel is in an instrument under his seal. Leddy v. Barney, 139 Mass. 394; Southeastern Railway Co. v. Wharton, 6 H. & N. 520; Horton v. Westminster Improvement Com'rs, 7 Exch. 780; Lucy v. Gray, 61 N. H. 151; Mann v. Williams, 143 Mass. 394; Hudson v. Greenwele Seminary, 113 Illinois, 618; Lainson v. Tremere, 1 Ad. & El. 792; Baker v. Nachtrieb, 19 How. 126; Shoe & Leather Bank v. Dix, 123 Mass. 148.

So far as the defendants are bound by implication arising from the acceptance of a deed poll, (if the writing be so construed,) it is only binding upon them as trustees and not in their individual capacity. And so far as they are bound by their written acceptance, the form of the same limits their liability to their capacity as trustees, notwithstanding their naked signatures. The following cases are cited to the points that the writing is the only evidence of the intent of the parties, and that on the whole writing there is no personal liability. Goodenough v. Thayer, 132 Mass. 152; Tucker Mfg. Co. v. Fairbanks, 98 Mass. 101; Carpenter v. Farnsworth, 106 Mass. 561; Terry v. Brightman, 132 Mass. 318; Ellis v. Pulsifer, 4 Allen, 165; Cutler v. Ashland, 121 Mass. 588; Cook v. Gray, 133 Mass. 106; Blanchard v. Blackstone, 102 Mass. 343; Whitford v. Laidler, 94 N. Y. 145.

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,

Opinion of the Court.

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