Keefer v. Mattingly , 1 Gill 182 ( 1843 )

Archer, J.,

delivered the opinion of this court.

Various questions have been discussed in this cause, which t)re think do not legitimately arise on the record. We are' limited by the law of 1825, chap. 117, to the consideration" Of the question presented to the court below. To this we shall confine our judgment. The court were called upon to say, there was no sufficient evidence of a consideration proved in’ the case. The writing signed by the defendants binding themselves to pay to the plaintiff whatever sum they should receive in their cases against Leckie and Mattingly, of the Chesapeake and Ohio canal company, does not in itself contain evidence of a consideration, and if the action had been founded on this instrument, it would have been necessary to have had' proper averments of a consideration. By the evidence offered by the plaintiff,- it appears that the defendants had instituted two actions by attachments in the Circuit- Court for the county of Washington, in the District of Columbia, against Leckie and Mattingly, and laid the same in the hands of the Chesapeake and Ohio Canal Company, which actions had been instituted to the November term of that court in the year 1840, and vrere depending at the time of the execution of the writing referred to. The claim of the defendants in those actions amounted as is demonstrated by the judgments obtained, to the sum of $1,189.85. That the writing refers to these cases is obvious by the designation of the parties, and the absence of evidence of any other controversy depending in any court between the parties. From this writing it may be inferred, that the extent of the defendant’s claim in those suits was adjusted, and the balance ascertained to be due them was $400. Then the defendants, by the same writing, bind themselves to pay to the plaintiffs all over the $400 which they should receive from the canal company in these cases. Two days after this, a judgment of condemnation is entered for the whole extent of the claim, and canal scrip on the fourth day after the agreement, is received for the whole amount of the judgments. Is it not a legitimate inference from these proceedings of the parties, that Mattingly forebore to defend the attachment cases in the circuit court, and in consequence of the agreement and in reliance upon it, allowed the judgment to go against the canal company? If but $400 was due the plaintiffs from Leckie and Mattingly, they might successfully have resisted the condemnation beyond that sum, which they forebore to do, in consequence of the agreement relying on the defendant’s willingness and ability to pay them whatever they should recover of the canal company, beyond the $400. We think therefore there was sufficient evidence of a consideration proper to be left to the jury. The court it is true, is the proper tribunal to construe and determine the legal effect and construction of instruments of writing; but when deductions are to be drawn from the conduct of the parties in the execution of such instruments, at the time, in the manner, and under the circumstances, existing in the case, the jury are the proper forum to make such deductions. We therefore think it was properly 9 question for the jury to determine whether a consideration existed in the case, and there was sufficient evidence before them for this purpose.

We also think the court were right in allowing the assignment from Leckie to Mattingly to be offered in evidence. It formed a proper basis for the introduction of the agreement of the defendants which was offered in evidence, and was calculated to explain the reason for the defendants contracting entirely with the plaintiff in relation to the surplus over $400, to he received by the defendants on their attachments against Leckie and Mattingly. j¡udgm;ent affirmed.