O'Brien v. Pabst Brewing Co.

31 App. D.C. 56, 1908 U.S. App. LEXIS 5583

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 31, 1908
• Docket: No. 1791
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

The principle that the construction of written evidence is exclusively with the court is so well settled that no citation of authorities is necessary to support it. Owing to the statute of frauds, the plaintiff necessarily relied upon the letter of March 21, 1902, from the defendant to its agent, and upon the paper containing the consent to the assignment of the lease. The testimony introduced merely tended to show the facts and circumstances surrounding the transaction, and aided the court in passing upon the written evidence. As the declaration sets forth, Engel was indebted to the defendant in a large sum. He was plaintiff’s lessee for a long term of years, and under a lease that he could not legally assign without the previous consent of the plaintiff in writing. The defendant submitted an offer to the plaintiff of $1,000 “for his consent to an assignment” of said lease, — not for his consent that Engel might assign the lease. This offer was conditioned upon a modification of the lease so that the defendant might sublet to others, which indicates that the defendant had in mind at the time the offer was made an actual and consummated assignment of the lease. Inasmuch as, under the terms of the lease, Engel had no authority to execute an assignment until O’Brien had assented thereto in writing, his signature was first obtained. It is apparent, however, that both O’Brien and his counsel then understood the transaction would not be completed until Engel had executed the assignment, for otherwise the $2,000 would have been demanded upon the delivery of the assent. O’Brien’s conduct in permitting defendant’s agents to take the paper he had signed to Engel for his signature without making any demand upon them, and without in fact saying anything about the payment of the $2,000, is inconsistent with plaintiff’s subsequent interpretation of the agreement. It is consistent, however, with the construction which the court evidently placed upon it. As bearing upon the position of McNally at the time, it is significant that he should have remarked to Gasch “that he was sorry the thing had fallen through.” It is. probably true that O’Brien, being a feeble old man, labored under the impression that lie was to receive $2,000 for signing the consent; but it will be remembered that be testified that McNally represented him in the negotiations witb the defendant company, and “that be bad nothing to do with the matter except to instruct McNally as to the price until be met at the office for the purpose of executing the papers.” It is quite possible, also, that McNally, having talked witb Engel and believing that be would not object to executing the assignment, said nothing to defendant’s agents as to the time when the $2,000 was to be paid. the conduct of both parties at the time O’Brien executed the consent indicates, as we have said before, their then understanding of the terms of the agreement, and it would be unconscionable, in the light of the original proposal which the defendant made to O’Brien, the paper containing the consent, and the facts and circumstances surrounding the transaction, to infer that the defendant ever intended to pay, or in fact agreed to pay, O’Brien the sum of $2,000 unless Engel executed an assignment of the lease, without which O’Brien’s consent amounted to nothing.

It appearing tbat Engel refused to execute tbe assignment, we think tbe court was fully justified in directing a verdict.

Tbe judgment, therefore, is affirmed, witb costs, and it is so ordered. Affirmed.