After a continuance, for advisement, the opinion of the Court was drawn up by
Emery J.
This is one of those cases with which, there is a prospect, we may be frequently occupied, in consequence of the late very extensive speculation in land. It would hardly do to denounce them at once as a species of gambling transactions ; though the infatuation in some instances appears but little short of what seems to have its influence over the minds of those, who have entered into a course of gaming. In this case the jury have found that there was no fraud, artifice, or deception, in relation to the business, practised on the defendant by the plaintiffs. The acknowledged worth of the defendant, protects him from imputation. Between deserving citizens, differing in opinion as to their rights, we are now called on to decide.
The defendant gave to the plaintiffs the two notes of hand in suit for $125 each, dated March 12, 1833, payable with interest, one in 6 months, the other in 9 months, as a bonus for the privilege or right of buying a quarter part of the real estate of General Vezie, at Oldtown, at tire price of $100)000 for the whole, within a certain period, or of selling a bond or contract for it. The plaintiff, Stone, was to obtain a bond, a survey and plan of the property, and assign one quarter part of the bond to Mr. Bradbury, the defendant ; and when he had done that, the witness, with .whom the notes were left for safe keeping, till'that contingency was performed, was to give Mr. Stone the notes. They were left with the witness to be so delivered, because Mr. Bradbury might not be at Brunswick when Mr. Stone should obtain the bond, survey and plan. [191]*191Not a great while after, Stone produced Gén. Veazie’$ bond, and a plan by Dunning to the witness, who considered it imperfect, as not being lotted into house lots. The plan and survey embraced 150 acres, with a sketch showing some house lots on the general street and what belonged to Veazie, and the outline of the whole tract. It was not in the witness’ recollection, that the survey should be into bouse lots. He stated, that Dunning went down and made the survey and plan at the plaintiff’s, Stone’s, request. The witness’ impression was that the agreement had been complied with. Mr. Stone made an assignment on the back of the bond of one quarter part of his interest in the bond of the real estate and mills in Oldtown to Bradbury, subsequent to tbe 12th of March, and before the expiration of tbe time limited in tbe bond for completing the purchase, which was between the 20th and 30th of May. The assignment was made within ten days. The witness testified, that lie should not have given up the notes, if the agreement had not been complied with.
Mr. Stone took away the bond after the quarter part had been assigned. Mr, Bradbury never called on the witness for the notes, but before the expiration of the bond, applied to the witness for the memorandum which had been left with the witness with the notes.
The witness had an interest in the bond, and an assignment was made to him, in the same manner, and lie carried it to Bangor with the assignment to Bradbury on it. It was satisfactory to the witness, and he tried to sell it. The bond expired after the witness returned from Bangor. Nothing was done with it, and no complaint has been shown by tbe defendant as to tbe faithfulness of Pike’s exertions to elibct a sale.
The defendant has objected that the notes were without consideration ; that the assignment was not under seal; nor the contract of Veazie a bond. He complains also of the instructions of the Judge to the jury.
A negotiable note expressed to be for value received is a promise for a legal consideration, although as between the original parties, the promissor may shew that there was no value received.
But on tbe evidence in this case, a valuable consideration is proved, in tile services of tlie plaintiff, Stone, in obtaining the bond, the survey, and plan, and in the assignment of the quarter part of [192]*192the plaintiff’s, Stone’s, interest therein to the defendant. Eastman et al. v. Wright et al. 6 Pick. 316, and cases there cited. 15 Mass. R. 481, Dunn v. Snell.
The jury have decided, that the conditions on which the notes were to be given up to the plaintiffs, were proved to have been substantially complied with by the plaintiffs, and that the bargain was a fair one.
It has been strenuously' urged that the Judge erred in his direction, that if the jury were satisfied from the evidence that the intention of the parties, by the use of the term bond, was to show they meant to obtain from Veazie an engagement to convey the land, which could be enforced, because it was a question of law, and should have been determined b'y the Court.
In the case Fowle v. Bigelow, 10 Mass. R. 379, in 1813, cited by the plaintiffs’ counsel, Judge Sewall observed, that the construction of written instruments is with the Court, and even when extraneous evidence is admissible to aid the construction, as it may be in some cases, so far as to ascertain the circumstances under which the writing was made, and the subject matter to be regulated by it, yet the Court is to direct the effect of that evidence, and what shall be the construction, if certain facts be proved.
In that case, the jury, it was said, was left too much at large. The trial was had before the late Chief Justice Parker, before his advancement to the office of Chief Justice. He had instructed the jury, that, the meaning of the parties in the memorandum, being uncertain from the words used, and it being out of his power to ascertain their meaning by reference to the body of the instrument, evidence of the facts and doings of the parties contemporaneously with and immediately subsequent to the execution of the instrument, was proper for their consideration; and if by these they were satisfied, that in the understanding of the parties, only a temporary maintenance of the gate was intended, until they should agree upon a time to take it down, their verdict ought to be for the defendant, otherwise for the plaintiff. One of the grounds of the motion for a new trial was, that the jury ought to have been permitted to judge of the construction of the instrument.
A new trial was granted because the written evidence, and the facts proved for the defendant, of which the evidence was properly [193]*193admitted at the trial, lead to an opposite conclusion from that which the jury have drawn, and their error is in a matter of law, the construction of the written agreement in which they are to be directed by the opinion of the Court. It is fairly inferable from this decision, that if the jury had drawn the right conclusion, no new tiial would have been granted.
It is to be recollected that in the present action, the witness, Pike, calls the instrument a bond over and over again; he could not say whether it was sealed by General Vcazie; should think there was no penal sum; a memorandum of agreement; could not say positively whether under seal; thinks it was signed by General 'Veazie;
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After a continuance, for advisement, the opinion of the Court was drawn up by
Emery J.
This is one of those cases with which, there is a prospect, we may be frequently occupied, in consequence of the late very extensive speculation in land. It would hardly do to denounce them at once as a species of gambling transactions ; though the infatuation in some instances appears but little short of what seems to have its influence over the minds of those, who have entered into a course of gaming. In this case the jury have found that there was no fraud, artifice, or deception, in relation to the business, practised on the defendant by the plaintiffs. The acknowledged worth of the defendant, protects him from imputation. Between deserving citizens, differing in opinion as to their rights, we are now called on to decide.
The defendant gave to the plaintiffs the two notes of hand in suit for $125 each, dated March 12, 1833, payable with interest, one in 6 months, the other in 9 months, as a bonus for the privilege or right of buying a quarter part of the real estate of General Vezie, at Oldtown, at tire price of $100)000 for the whole, within a certain period, or of selling a bond or contract for it. The plaintiff, Stone, was to obtain a bond, a survey and plan of the property, and assign one quarter part of the bond to Mr. Bradbury, the defendant ; and when he had done that, the witness, with .whom the notes were left for safe keeping, till'that contingency was performed, was to give Mr. Stone the notes. They were left with the witness to be so delivered, because Mr. Bradbury might not be at Brunswick when Mr. Stone should obtain the bond, survey and plan. [191]*191Not a great while after, Stone produced Gén. Veazie’$ bond, and a plan by Dunning to the witness, who considered it imperfect, as not being lotted into house lots. The plan and survey embraced 150 acres, with a sketch showing some house lots on the general street and what belonged to Veazie, and the outline of the whole tract. It was not in the witness’ recollection, that the survey should be into bouse lots. He stated, that Dunning went down and made the survey and plan at the plaintiff’s, Stone’s, request. The witness’ impression was that the agreement had been complied with. Mr. Stone made an assignment on the back of the bond of one quarter part of his interest in the bond of the real estate and mills in Oldtown to Bradbury, subsequent to tbe 12th of March, and before the expiration of tbe time limited in tbe bond for completing the purchase, which was between the 20th and 30th of May. The assignment was made within ten days. The witness testified, that lie should not have given up the notes, if the agreement had not been complied with.
Mr. Stone took away the bond after the quarter part had been assigned. Mr, Bradbury never called on the witness for the notes, but before the expiration of the bond, applied to the witness for the memorandum which had been left with the witness with the notes.
The witness had an interest in the bond, and an assignment was made to him, in the same manner, and lie carried it to Bangor with the assignment to Bradbury on it. It was satisfactory to the witness, and he tried to sell it. The bond expired after the witness returned from Bangor. Nothing was done with it, and no complaint has been shown by tbe defendant as to tbe faithfulness of Pike’s exertions to elibct a sale.
The defendant has objected that the notes were without consideration ; that the assignment was not under seal; nor the contract of Veazie a bond. He complains also of the instructions of the Judge to the jury.
A negotiable note expressed to be for value received is a promise for a legal consideration, although as between the original parties, the promissor may shew that there was no value received.
But on tbe evidence in this case, a valuable consideration is proved, in tile services of tlie plaintiff, Stone, in obtaining the bond, the survey, and plan, and in the assignment of the quarter part of [192]*192the plaintiff’s, Stone’s, interest therein to the defendant. Eastman et al. v. Wright et al. 6 Pick. 316, and cases there cited. 15 Mass. R. 481, Dunn v. Snell.
The jury have decided, that the conditions on which the notes were to be given up to the plaintiffs, were proved to have been substantially complied with by the plaintiffs, and that the bargain was a fair one.
It has been strenuously' urged that the Judge erred in his direction, that if the jury were satisfied from the evidence that the intention of the parties, by the use of the term bond, was to show they meant to obtain from Veazie an engagement to convey the land, which could be enforced, because it was a question of law, and should have been determined b'y the Court.
In the case Fowle v. Bigelow, 10 Mass. R. 379, in 1813, cited by the plaintiffs’ counsel, Judge Sewall observed, that the construction of written instruments is with the Court, and even when extraneous evidence is admissible to aid the construction, as it may be in some cases, so far as to ascertain the circumstances under which the writing was made, and the subject matter to be regulated by it, yet the Court is to direct the effect of that evidence, and what shall be the construction, if certain facts be proved.
In that case, the jury, it was said, was left too much at large. The trial was had before the late Chief Justice Parker, before his advancement to the office of Chief Justice. He had instructed the jury, that, the meaning of the parties in the memorandum, being uncertain from the words used, and it being out of his power to ascertain their meaning by reference to the body of the instrument, evidence of the facts and doings of the parties contemporaneously with and immediately subsequent to the execution of the instrument, was proper for their consideration; and if by these they were satisfied, that in the understanding of the parties, only a temporary maintenance of the gate was intended, until they should agree upon a time to take it down, their verdict ought to be for the defendant, otherwise for the plaintiff. One of the grounds of the motion for a new trial was, that the jury ought to have been permitted to judge of the construction of the instrument.
A new trial was granted because the written evidence, and the facts proved for the defendant, of which the evidence was properly [193]*193admitted at the trial, lead to an opposite conclusion from that which the jury have drawn, and their error is in a matter of law, the construction of the written agreement in which they are to be directed by the opinion of the Court. It is fairly inferable from this decision, that if the jury had drawn the right conclusion, no new tiial would have been granted.
It is to be recollected that in the present action, the witness, Pike, calls the instrument a bond over and over again; he could not say whether it was sealed by General Vcazie; should think there was no penal sum; a memorandum of agreement; could not say positively whether under seal; thinks it was signed by General 'Veazie; did not feel confident of its being a bond in usual form; it was without penalty ; witness recollected the price, and no forfeiture; the sum of the purchase was $100,000; and he tells when the bond expired.
The terms bind, bound, binding effect, obligation, are used often by the most respectable jurists without meaning to have them applied to bond, in the technical language of the law.
A case decided in the Supreme Court of the United States in 1821, reported in 6 Wheat. 572, Union Bank v. Hyde, is an instance. The case turned upon the construction of a written instrument. “ I do request that hereafter any notes that may fall due in “ die Union Bank, on which I am or may be indorser, shall not “ be protested, as I will consider myself bound in the same manner “ as if the said notes had been or should be legally protested. “ Thomas Hyde.” Two constructions were contended for, one literal, formal, vernacular, the other resting on the spirit and meaning, as a mercantile transaction. The Court speak of the nullity of a protest on the legal obligations of the parties to an inland bill, and ask, “ what are we to understand him to intend, when he says, I will consider myself bound in the same manner as if said notes had been or should be legally protested. Except as to foreign bills, a protest has no legal binding effect. What effect is to be given to the word bound ? It must be to pay the debt, or it means nothing. But to cast on the indorser of a foreign bill, an obligation to take it up, protest alone is not sufficient. He is still entitled to a reasonable notice in addition to the technical notice communicated in the protest. To bind him to pay the debt, all these incidents were in[194]*194dispensable, and may therefore be well supposed to have been in contemplation of the parties when entering into this contract. In that case the evidence proved, that by the understanding of both parties, this writing did dispense with demand and refusal. The •company discontinued putting the notes indorsed by the defendant in the usual course for rendering his assumption absolute, and the defendant continued to renew his-indorsements without ever requiring demand or notice.” The admission of the parol evidence to explain tire ambiguity, was thus sanctioned. If such language may be used in our highest judicial tribunal, in application to an instrument not in truth a technical bond under seal, it is not surprising that some latitude should be indulged in, between one, as the plaintiff, Stone, is not a professional man, and one who is of the legal profession, as the defendant is, about a contract to convey land.
In 2 Bingham, N. C. 668, Powell v. Horton, in 29 Eng. Com. Law R. 452, a contract to sell mess pork of ' Scott &f Co., was held to mean mess pork manufactured hy Scott Co., and also that evidence was admissible to shew what meaning that language bore in market.
Tindall Chief Justice, observes, that “in all mercantile contracts on which doubts arise, it is usual to call persons conversant with the trade to state what is understood by the disputed expression.” Parh Justice, says, “ assuming that there is an ambiguity, and it was proper to receive evidence as to tire acceptation of such terms in the market, the defendant’s counsel, by objecting to the admissibility of such evidence, and rejecting the construction put on the contract by the Judge, refuses in effect the decision of both Judge and jury.”
In the equivocal description of the instrument executed by Veazie, and the avowed satisfaction with it by the witness, who dealt - in the land trade, we do not perceive any error in the Judge in placing the matter, as he did, before the jury, as he did give them decided direction, that the instrument, whether sealed or not, if in writing, containing an engagement to convey the land, would be sufficient without penalty or forfeiture.
We do not perceive that the jury have drawn a wrong conclusion, and there must be judgment on the verdict.