Mr. Justice MILLER
(having stated the case) delivered the opinion of the court.
The whole of the testimony is embraced in a bill of exceptions, not long, and the questions to be decided here arise out of the charge of the court to the jury and its refusal to give instructions asked by the defendant.
It is quite clear that the court charged the jury that there was evidence of a verbal contract differing from the one in; writing; that they might infer that the verbal contract was such that defendant would be held in law to be a bailee for the United States as to the whole $80,000, and designedly left the impression that this was so clear that it was unnecessary for him to. instruct them as to the legal .effect of the written contract on the rights of the parties.
Now, as all the testimony is in the bill of exceptions, and as the plaintiffs read this written contract as part of their case, we should be able to discern some evidence on which the jury could find not only that there was a verbal contract but that it differed from the written one, and that it showed that the defendant received the entire $80,000 to the use of the United States; for if this was not so the verbal contract was insufficient to authorize the verdict. We have not been, able to find in the bill of exceptions anything which justified this charge of the court.
It is clear from the paper given in evidence by the plaintiffs, and from the statement which it contains,
Now the plaintiffs not only introduced the statement above alluded to, but they proved by Trowbridge, their own witness, as part of their case, that the verbal proposition of April was identical with the written proposition! which they had introduced.
How can they be permitted to contradict their own witness and discredit their own written testimony, consistently with the rules of evidence ?
But if they could, we have searched in vain for any evidence which varies in the slightest degree that which we have cited. It is in fact all that there is on that subject. It has been argued here, as it probably was before the jury, that the written proposition was gotten up after the fact to cover up a fraud; that in fact Ward was given the $80,000 for payment to the United States alone without reference to his own claim on the company, and having concealed this fact and made a better compromise than was expected, he had this,paper made out to include his own claim to give color to á fraud. But of this there is nothing but the merest suspicion of. counsel. No witness has testified that the agreement of April was such as is here supposed, or that it differed from the writing of May 14th. The plaintiffs themselves have proved that they were identical. It would be a, total disregard of all rules of evidence to allow them to go. to the jury with an argument founded on mere suspicion, a suspicion, contradicted by their own evidence, and then have the court charge that there was in the testimony a founda[39]*39tion for this suspicion, a foundation so strong as to render a construction of the only real proposition which was proved, useless and embarrassing to them.
And if it could for any reason be conjectured that the verbal proposal differed from the one made in writing, there is nothing to show what that difference was, and whether it might not have been even more favorable to the defendant than the one produced in writing. The jury were left by the court, and in fact told to disregard the facts which were proved, and indulge in the vagaries of their imagination, in this the turning-point of the case.
Now, it is undeniable that Ward made a very enormous profit in the transaction, and that he availed himself of a knowledge of facts unknown to the officers of the government, in a manner which was well calculated to prejudice the jury against his case, but this was no reason why the court should authorize them to indulge this prejudice by a disregard of the established principles of the law of evidence.
We are, therefore, of opinion that the Circuit Court erred in refusing to instruct the jury that there was no such evidence, and in charging them that there was.
There were several other prayers for instruction asked by the defendant’s counsel and refused by the court, on which error is assigned and which we do not deem necessary to notice further than this: that some of the prayers seemed to require a construction of the written proposition found in the record.
Whether the specific prayers of the defendant’s counsel were such as should have been given or refused, we are of opinion that it was the duty of the court to have given the jury a construction of that instrument, and as this duty will probably arise, and the interpretation of the writing become an important element of a new trial, we will consider it now.
The evidence makes it pretty clear that the original corporation, the principal in the warehouse bonds, was also indebted to the defendant in a considerable amount, which appears to have never been liquidated. The corporation whose [40]*40directors made the proposition to Ward, while it denied a direct liability either to him or to the United States, found a lien on their property which made them desire the settlement of both these claims. These facts are undisputed, and in view of them, and of the other fact that Ward was probably liable to the government for the full amount unpaid on -the bonds, we are to determine what those directors meant.
The first and important element of their proposal is that “ we will pay $80,000 on account of these bonds if you can procure a settlement and cancelling of them for a sum not exceeding that amount.” The second branch of it is that this sum must include “your services in making this settlement, and any claim you may have against the company on account of the bonds. When this arrangement is made the company is ready to pay half that sum, and the other half in thirty days thereafter.”
Is this a proposition to pay Ward $80,000 if he procures a settlement of both demands, leaving him at liberty to keep as much or as little of it as he chose, provided he effected their purpose? Or is it a proposal to pay generally the $80,000 on the two demands, provided it be accepted in full satisfaction of both?
. The language of the proposition is that they.will pay that’ sum for a settlement of both claims. It does not say that they will pay it to Ward, but will pay that sum on account of these two demands. Ward had first called on them to do something in the matter. This was their response.
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Mr. Justice MILLER
(having stated the case) delivered the opinion of the court.
The whole of the testimony is embraced in a bill of exceptions, not long, and the questions to be decided here arise out of the charge of the court to the jury and its refusal to give instructions asked by the defendant.
It is quite clear that the court charged the jury that there was evidence of a verbal contract differing from the one in; writing; that they might infer that the verbal contract was such that defendant would be held in law to be a bailee for the United States as to the whole $80,000, and designedly left the impression that this was so clear that it was unnecessary for him to. instruct them as to the legal .effect of the written contract on the rights of the parties.
Now, as all the testimony is in the bill of exceptions, and as the plaintiffs read this written contract as part of their case, we should be able to discern some evidence on which the jury could find not only that there was a verbal contract but that it differed from the written one, and that it showed that the defendant received the entire $80,000 to the use of the United States; for if this was not so the verbal contract was insufficient to authorize the verdict. We have not been, able to find in the bill of exceptions anything which justified this charge of the court.
It is clear from the paper given in evidence by the plaintiffs, and from the statement which it contains,
Now the plaintiffs not only introduced the statement above alluded to, but they proved by Trowbridge, their own witness, as part of their case, that the verbal proposition of April was identical with the written proposition! which they had introduced.
How can they be permitted to contradict their own witness and discredit their own written testimony, consistently with the rules of evidence ?
But if they could, we have searched in vain for any evidence which varies in the slightest degree that which we have cited. It is in fact all that there is on that subject. It has been argued here, as it probably was before the jury, that the written proposition was gotten up after the fact to cover up a fraud; that in fact Ward was given the $80,000 for payment to the United States alone without reference to his own claim on the company, and having concealed this fact and made a better compromise than was expected, he had this,paper made out to include his own claim to give color to á fraud. But of this there is nothing but the merest suspicion of. counsel. No witness has testified that the agreement of April was such as is here supposed, or that it differed from the writing of May 14th. The plaintiffs themselves have proved that they were identical. It would be a, total disregard of all rules of evidence to allow them to go. to the jury with an argument founded on mere suspicion, a suspicion, contradicted by their own evidence, and then have the court charge that there was in the testimony a founda[39]*39tion for this suspicion, a foundation so strong as to render a construction of the only real proposition which was proved, useless and embarrassing to them.
And if it could for any reason be conjectured that the verbal proposal differed from the one made in writing, there is nothing to show what that difference was, and whether it might not have been even more favorable to the defendant than the one produced in writing. The jury were left by the court, and in fact told to disregard the facts which were proved, and indulge in the vagaries of their imagination, in this the turning-point of the case.
Now, it is undeniable that Ward made a very enormous profit in the transaction, and that he availed himself of a knowledge of facts unknown to the officers of the government, in a manner which was well calculated to prejudice the jury against his case, but this was no reason why the court should authorize them to indulge this prejudice by a disregard of the established principles of the law of evidence.
We are, therefore, of opinion that the Circuit Court erred in refusing to instruct the jury that there was no such evidence, and in charging them that there was.
There were several other prayers for instruction asked by the defendant’s counsel and refused by the court, on which error is assigned and which we do not deem necessary to notice further than this: that some of the prayers seemed to require a construction of the written proposition found in the record.
Whether the specific prayers of the defendant’s counsel were such as should have been given or refused, we are of opinion that it was the duty of the court to have given the jury a construction of that instrument, and as this duty will probably arise, and the interpretation of the writing become an important element of a new trial, we will consider it now.
The evidence makes it pretty clear that the original corporation, the principal in the warehouse bonds, was also indebted to the defendant in a considerable amount, which appears to have never been liquidated. The corporation whose [40]*40directors made the proposition to Ward, while it denied a direct liability either to him or to the United States, found a lien on their property which made them desire the settlement of both these claims. These facts are undisputed, and in view of them, and of the other fact that Ward was probably liable to the government for the full amount unpaid on -the bonds, we are to determine what those directors meant.
The first and important element of their proposal is that “ we will pay $80,000 on account of these bonds if you can procure a settlement and cancelling of them for a sum not exceeding that amount.” The second branch of it is that this sum must include “your services in making this settlement, and any claim you may have against the company on account of the bonds. When this arrangement is made the company is ready to pay half that sum, and the other half in thirty days thereafter.”
Is this a proposition to pay Ward $80,000 if he procures a settlement of both demands, leaving him at liberty to keep as much or as little of it as he chose, provided he effected their purpose? Or is it a proposal to pay generally the $80,000 on the two demands, provided it be accepted in full satisfaction of both?
. The language of the proposition is that they.will pay that’ sum for a settlement of both claims. It does not say that they will pay it to Ward, but will pay that sum on account of these two demands. Ward had first called on them to do something in the matter. This was their response. Without entering into any further verbal criticism of the language of the instrument, but looking to the relations of Ward to the government, and to the railroad company which made the proposal, we think that its true construction is, that the $80,000 was to be paid in settlement of the claims of the government on the bonds, and of Ward’s claim for becoming surety, and a fair compensation for his services in obtaining the compromise with the government.
With this construction of the instrument—the only evidence before the jury of the terms on which defendant received the money—it should have been left to them to [41]*41ascertain how much was due the plaintiffs on account of the bonds when the proposition was made, how much was.due the defendant for becoming surety for the railroad company, and what was a fair compensation for his services in effecting the compromise with the United States.
These facts being ascertained, they should have been directed to apportion the $80,000 between the plaintiffs and the defendant, according'to the amounts thus ascertained as due to each, and make this the foundation of their verdict, deducting from the proportion of the $80,000 falling to the United States the $85,000 paid them by the defendant.
Judgment reversed, and a new trial awarded.
Quoted supra, p. 30, in small type.