Rugg, J.
The agreement signed by the defendant, upon which this action is brought, is not under seal, and expresses the consideration in the conventional phrase, “ one dollar and other valuable consideration.” The words, “ hereinafter named ” come immediately after, but they are surplusage, as no further consideration is stated, although there follows a statement of the condition, upon the happening of which the money shall become payable. This is a definition of the time when the money shall become due and payable, rather than an amplification of the consideration. For aught that appears upon the paper, the defendant’s agreement may have been to pay to the plaintiff an indebtedness, not of himself but of X., amounting to $250, the moment of payment being fixed by the time when Y., who had been employed for the purpose, should procure an effectual release of the defendant’s money deposited in lieu of bail for Alfred M. Day. Under these circumstances it was permissible to show by oral evidence what was the actual induce[245] ment for the agreement of the defendant, or, the agreement not being under seal, that there was no consideration. Weed v. Jewett, 2 Met. 602. Clark v. Deshon, 12 Cush. 589. Snow v. Alley, 156 Mass. 193. Snow v. Alley, 151 Mass. 14. Goward v. Waters, 98 Mass. 596. Carr v. Dooley, 119 Mass.. 294. Graffam v. Pierce, 143 Mass. 386. Howe v. Walker, 4 Gray, 318. Cardinal v. Hadley, 158 Mass. 352. Galvin v. Boston Elevated Railway, 180 Mass. 587. Drew v. Wiswall, 183 Mass. 554. Under this well established rule the evidence of Charles H. Day, as to what in fact the plaintiff promised to Greer that he would do in return for the defendant’s signature to the agreement, was admissible. It did not tend to contradict the writing, but merely to show the conditions, which were first to be performed by the plaintiff, before the promise of the defendant, expressed in the writing, should become operative. Upon the same principle, the testimony of Alfred M. Day was competent. The effect of his evidence was to show that a part of the consideration was the agreement of the plaintiff to procure “ straw ” bail. If this was true, it showed conduct grossly unprofessional, a fraud upon the court, and was such an illegal undertaking on the part of the plaintiff as to taint the entire agreement and render it unenforceable. Taylor v. Jaques, 106 Mass. 291. Bishop v. Palmer, 146 Mass. 469. Both the want of consideration and the illegality of the matter of agreement were seasonably pleaded by the defendant, and the proffered evidence from the two Days bore upon the issues.
With considerable hesitation, we are brought to the conclusion that the testimony of the defendant, that “ he was to pay the plaintiff two hundred and fifty dollars when he got his money ” was admissible, either on the ground of stating in substance that the consideration for the agreement was that, as a condition precedent to any obligation on the part of the defendant, the plaintiff was to make such arrangements respecting bail for Charles H. Day, as would enable the defendant to get his money, or upon the ground, in view of his previous testimony that no conversation took place between the plaintiff and himself at the time of signing the agreement, that this may have been the substance of a subsequent conference between the plaintiff and the defendant, resulting in a modification or extension of the written [246] instrument. The evidence also may have been admissible as showing the existence of a condition as a part of the consideration, upon the occurrence of which alone the agreement should become operative. Upon this view the conversation would not be in contradiction of the writing but in pursuance of the original purpose. Wilson v. Powers, 131 Mass. 539. Rackemann v. Riverbank Improvement Co. 167 Mass. 1. If these different views involve an assumption of conflicting evidence on the part of the defendant, the weighing of it and ascertaining where the truth lay. was. the province of the jury. It seems more reasonable to •interpret the evidence in this way than to assume that the trial court violated so elementary a principle of law as to permit the defendant to give his interpretation of the, words written in the agreement.
The first, second and fourth prayers for instructions presented by the plaintiff were properly refused. The first omitted all reference to the contention that the consideration had failed and was illegal, nor does it refer to the defendant, and therefore could not have been given. The second prayer required the judge to direct a verdict for the plaintiff, which is so obviously untenable as not to call for discussion. The fourth asked the judge to make a ruling as to the abstract meaning of the word “released,” wholly apart from the connection in which the jury might find that it was used in the light of the testimony from the defence as to the consideration for the agreement. The court could not have been required to do this.
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Rugg, J.
The agreement signed by the defendant, upon which this action is brought, is not under seal, and expresses the consideration in the conventional phrase, “ one dollar and other valuable consideration.” The words, “ hereinafter named ” come immediately after, but they are surplusage, as no further consideration is stated, although there follows a statement of the condition, upon the happening of which the money shall become payable. This is a definition of the time when the money shall become due and payable, rather than an amplification of the consideration. For aught that appears upon the paper, the defendant’s agreement may have been to pay to the plaintiff an indebtedness, not of himself but of X., amounting to $250, the moment of payment being fixed by the time when Y., who had been employed for the purpose, should procure an effectual release of the defendant’s money deposited in lieu of bail for Alfred M. Day. Under these circumstances it was permissible to show by oral evidence what was the actual induce[245] ment for the agreement of the defendant, or, the agreement not being under seal, that there was no consideration. Weed v. Jewett, 2 Met. 602. Clark v. Deshon, 12 Cush. 589. Snow v. Alley, 156 Mass. 193. Snow v. Alley, 151 Mass. 14. Goward v. Waters, 98 Mass. 596. Carr v. Dooley, 119 Mass.. 294. Graffam v. Pierce, 143 Mass. 386. Howe v. Walker, 4 Gray, 318. Cardinal v. Hadley, 158 Mass. 352. Galvin v. Boston Elevated Railway, 180 Mass. 587. Drew v. Wiswall, 183 Mass. 554. Under this well established rule the evidence of Charles H. Day, as to what in fact the plaintiff promised to Greer that he would do in return for the defendant’s signature to the agreement, was admissible. It did not tend to contradict the writing, but merely to show the conditions, which were first to be performed by the plaintiff, before the promise of the defendant, expressed in the writing, should become operative. Upon the same principle, the testimony of Alfred M. Day was competent. The effect of his evidence was to show that a part of the consideration was the agreement of the plaintiff to procure “ straw ” bail. If this was true, it showed conduct grossly unprofessional, a fraud upon the court, and was such an illegal undertaking on the part of the plaintiff as to taint the entire agreement and render it unenforceable. Taylor v. Jaques, 106 Mass. 291. Bishop v. Palmer, 146 Mass. 469. Both the want of consideration and the illegality of the matter of agreement were seasonably pleaded by the defendant, and the proffered evidence from the two Days bore upon the issues.
With considerable hesitation, we are brought to the conclusion that the testimony of the defendant, that “ he was to pay the plaintiff two hundred and fifty dollars when he got his money ” was admissible, either on the ground of stating in substance that the consideration for the agreement was that, as a condition precedent to any obligation on the part of the defendant, the plaintiff was to make such arrangements respecting bail for Charles H. Day, as would enable the defendant to get his money, or upon the ground, in view of his previous testimony that no conversation took place between the plaintiff and himself at the time of signing the agreement, that this may have been the substance of a subsequent conference between the plaintiff and the defendant, resulting in a modification or extension of the written [246] instrument. The evidence also may have been admissible as showing the existence of a condition as a part of the consideration, upon the occurrence of which alone the agreement should become operative. Upon this view the conversation would not be in contradiction of the writing but in pursuance of the original purpose. Wilson v. Powers, 131 Mass. 539. Rackemann v. Riverbank Improvement Co. 167 Mass. 1. If these different views involve an assumption of conflicting evidence on the part of the defendant, the weighing of it and ascertaining where the truth lay. was. the province of the jury. It seems more reasonable to •interpret the evidence in this way than to assume that the trial court violated so elementary a principle of law as to permit the defendant to give his interpretation of the, words written in the agreement.
The first, second and fourth prayers for instructions presented by the plaintiff were properly refused. The first omitted all reference to the contention that the consideration had failed and was illegal, nor does it refer to the defendant, and therefore could not have been given. The second prayer required the judge to direct a verdict for the plaintiff, which is so obviously untenable as not to call for discussion. The fourth asked the judge to make a ruling as to the abstract meaning of the word “released,” wholly apart from the connection in which the jury might find that it was used in the light of the testimony from the defence as to the consideration for the agreement. The court could not have been required to do this.
Exception also was taken to the ruling that it was a question of fact for the jury to decide, whether the $800 in Mr. Manning’s hands was released by the surrender of Alfred M. Day in the manner disclosed by the evidence. This, however, was a mere paraphrase and amplification of the third prayer, which at the request of the plaintiff the judge had given. It does not lie in the mouth of a party to question the correctness of the substance of a ruling, which has been given at his own importunity. But upon broader considerations the ruling was refused properly. This belongs to the class of cases where the sense in which a word is used in a contract may be a question of fact in view of all the circumstances. Oral evidence is not admissible to contradict or vary the terms of the written contract, but [247] .the situation and all the circumstances of all the parties, and the condition of the subject with which they are dealing, may be shown in order to properly apply the contract to the matters to which it relates. When there is conflicting evidence respecting these circumstances and conditions, then a proper case arises for the jury. The first relations between the plaintiff and the defendant apparently occurred when the agreement was signed. There was no consideration for the contract other than the agreement on the part of the plaintiff to do something further than what he had done already, But it required nothing to be done by the plaintiff to secure the release of the money by the surrender of Alfred M. Day into court. That was something he could do of his own volition, without the assistance of the plaintiff. No contention was made that a part of the service, which, the plaintiff agreed to render, was the convincing of Alfred M. Day that he ought to surrender himself. It was at least sufficiently favorable to the plaintiff to leave the question for the determination of the jury. Smith v. Vose Piano Co. 194 Mass. 193. Stoope v. Smith, 100 Mass. 63. Miller v. Stevens, 100 Mass. 518. Keller v. Webb, 125 Mass. 88. Proctor v. Hartigan, 139 Mass. 554; S. C. 143 Mass. 462. New England Dressed Meat & Wool Co. v. Standard Worsted Co. 165 Mass. 328, 332. Sargent v. Adams, 3 Gray, 72. Hebb v. Welsh, 185 Mass. 335. Buffington v. McNally, 192 Mass. 198. Bradford v. Manley, 13 Mass. 139. Weston v. Boston & Maine Railroad, 190 Mass. 298. MacDonald v. Longbottom, 28 L. J. Q. B. 293; S. C. 29 L. J. Q. B. 256.
Nor is any error shown in the other portion of the charge, .to which exception was taken. The contract was open to explanation respecting the consideration. It was a fair inference from the testimony produced in behalf of the defendant that the consideration for the agreement was that the plaintiff should procure effectual bail, and that Greer should thereby be enabled to get his money. The contention of the plaintiff was that all that he agreed to do was to procure bail for $800, and that his contract was performed when he procured two sureties sufficient for this amount and he was entitled to enforce his contract against the defendant, in spite of the fact that the amount of the bail subsequently was raised by order of the court. [248] In passing upon these two conflicting lines of evidence, the jury were correctly instructed that they had a right to consider all the circumstances attending upon the transaction in enabling them to ascertain the real consideration. .
Exceptions overruled.