
    George Proctor & another vs. Bartholomew J. Hartigan.
    Suffolk.
    Jan. 21. —
    June 24, 1885.
    Field, Devens, & Colburn, JJ., absent.
    In an action by the payee against the acceptor of an order, above whose acceptance were written the words, “ To be paid out of the last payment,” a written contract, existing at the time of the acceptance, between the acceptor and the drawer, for the erection of a house, and a conversation, before the acceptance, between the parties to the order and the acceptor’s architect, referring to the contract, are admissible in evidence to aid in the construction of the order.
    Coetbact against the defendant, as acceptor of the following order:
    “ #500. Boston, August 19, 1882.
    “ Bartholomew. J. Hartigan, pay to the order of Proctor & Drummey five hundred dollars, value received; and charge the same to account of
    James Walsh.
    “ To be paid out of the last payment.
    “ I accept this order.
    B. J. Hartigan.”
    Answer, that the acceptance was conditional, and that the words “ To be paid out of the last payment ” related to and depended upon the performance of a contract, which, at the time of said acceptance, was in force between said Walsh and the defendant; that Walsh, before the completion of the contract, left for parts unknown, and failed to comply with the terms of the contract; and that, in consequence of said breach on the part of Walsh, no last payment became due and payable to him or to the plaintiffs. By the terms of the contract, a copy of which was annexed to the answer, Walsh agreed to build a house for the defendant, for #2700, and the defendant agreed to pay him therefor in instalments, the last two being #600 on the completion and acceptance of the building, and #800 in thirty-one days thereafter.
    Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows :
    The plaintiffs put in evidence the order, the signatures thereon being admitted, and also proved that, after the acceptance of said order by the defendant, the defendant was owing Walsh, and paid to him of said debt the sum of $500, which was the last payment actually made by the defendant to Walsh; and that, after the acceptance of the order, the plaintiffs, relying on said acceptance, sold and delivered lumber to said Walsh, which was used in the construction of the defendant’s house, and made demand upon the defendant for payment of the order both before and after the completion of the house.
    The defendant offered evidence of a conversation between the defendant, one Lafield, the defendant’s architect, said Walsh, and one of the plaintiffs, prior to the acceptance of said order, and relating to such acceptance, to show that Lafield then told the defendant that he could accept the order, to be paid out of the last payment called for by his contract with Walsh; that the plaintiff, Proctor, then assented thereto, provided his partner would assent, and, after conference with his partner, did assent to such acceptance, and that thereupon the defendant signed the acceptance. The defendant also offered to put in evidence the written contract between himself and Walsh. The judge excluded the evidence of the conversation offered, and also the contract.
    The evidence showed a failure on the part of Walsh to complete the defendant’s house. The evidence was conflicting whether the plaintiffs knew of the contract between Walsh and the defendant prior to the acceptance of the order; also, whether the words “ To be paid out of the last payment ” were written at the time of the acceptance, or prior to the presentation of the order to the defendant.
    The defendant asked the judge to instruct the jury that the acceptance was conditional, and that the plaintiffs could not recover until the last payment provided for in the contract between the defendant and Walsh was due; but the judge declined to give such instruction, and ruled that the acceptance was unconditional. The jury returned a verdict for the plaintiffs for the amount of the order, with interest; and the defendant alleged exceptions.
    
      J. F. Cronan, for the defendant.
    
      R. Lund, for the plaintiffs.
   W. Allen, J.

The words “ To he' paid out of the last payment ” were part of the defendant’s contract of acceptance; and evidence of the contract between the drawer and drawee, and of the conversation between the parties refering to it, was competent to aid in the construction of the writing by showing the facts and circumstances under which it was made. See Franklin Savings Institution v. Reed, 125 Mass. 365; Stoops v. Smith, 100 Mass. 63. . Exceptions sustained.  