
    GASPAR TOCHMAN, Plaintiff and Respondent, v. WILLIAM P. BROWN, Defendant and Appellant.
    I. Evidence—Exclusion op, when not erroneous. When evidence is inadmissible in the aspect in which it is offered it is not error to exclude it, although it may be admissible in some other aspect.
    
      a. Contract, evidence to explain or to apply.
    
    1. Thus evidence offered to explainthe terms of a contract, being inadmissible for that purpose, was properly excluded, although it was admissible for the puipose of applying the contract.
    II. Contract—evidence to explain terms of when not admissible.
    1. Instance of.
    HI. Charge—Erroneous, when not ground for reversal.
    
    
      a. When the error could not by any possibility have injuriously affected the unsuccessfnl party.
    IV. Trial—Objections on, when and how to betaken to subject the rulings thereon to review.
    1. The objection must be taken before the objectionable question has been answered.
    
      2. The objection must be made to a question put or evidence offered; it cannot be made to the admission of evidence anticipated to be given, unless the trial judge distinctly permits it > to be so made.
    3. If, in answer to a proper question, a witness gives evidence not responsive thereto, or evidence that is improper, the remedy is by motion to strike out the objectionable testimony, and not by objection to it.
    V. ChABGE—BEEUSAB OE BEQUESTS TO, WHEN* PBOPEE.
    1. Assumed state of facts (concerning which there is no evidence), it is proper for the judge to refuse to charge what the law is as applied to them.
    2. Witness wholly unsupported, it is not error to refuse to charge that the testimony of a witness as to certain matters is wholly unsupported, even though no other witness had testified to the same or substantially the same facts.
    Before Barbour, Ch. J., Monell and Jones, JJ.
    
      Decided July 1, 1871.
    Appeal from a judgment, and an order denying a motion for a new trial on the judge’s minutes.
    The action is brought on an instrument of which the following is a copy :
    “Hew York," July 20, 1869.
    “ If General Tochman obtains for me a loan of $50,000 on the property located on Tenth-avenue, on terms suitable to me, I promise to pay him four per cent, on the loan in a check payable out of the same, for the purpose of his promoting emigration to Virginia.
    “ W. P. Brown.”
    The General Tochman mentioned in the instrument is the plaintiff, and the party signing it the defendant.
    The complaint alleges that the plaintiff has duly performed all the conditions of said instrument upon his part; that he has demanded of defendant payment of the sum of two thousand dollars, and that defendant has not paid the same ; and the prayer is for judgment for two thousand dollars, interest thereon, and costs.
    
      The answer of defendant denies performance on plaintiff’s part.
    On the trial it appeared that plaintiff had procured from the Metropolitan Savings Bank an offer to loan fifty thousand dollars on the property, at seven per cent, interest for one year ; and a letter from the president of the bank in the following terms :
    “ Metropolitan Savings Bank,
    “ Hos. 1 and 3 Third-avenue,
    “Hew York, July 30, 1869.
    “Mr. W. P. Brown:
    “ Dear Sir—In reference to a time loan from this institution, I would say that we do not make our bonds and mortgages for over one year ; but you can have the assurance that, if the interest is paid regularly and insurance kept satisfactory, .the loan may continue a term of years, if you should desire it. We do not care to disturb our investments when made.
    “ Yours, etc.,
    “ISAAC T. SMITH.
    “ President
    
    This offer and letter were communicated to the defendant, who, up to the time of the trial, had not taken the loan.
    Of these facts there is no dispute. But on the trial defendant claimed that the terms of the loan were not satisfactory to him; that he wanted a time loan of from three to five years, and that on this ground he, when the loan was offered to him, and on all subsequent occassions, refused to accept it; and he introduced evidence in support of the claim. Plaintiff introduced evidence to the effect that defendant, when the loan was offered to him ; and on various subsequent occasions, expressed himself satisfied with it, and promised to deliver his title papers to have the title examined.
    
      The question of fact, and whether the defendant assented to the terms of the loan, upon his being apprised of them, or not, was left to the jury, who decided that he did not so assent.
    In the course of the trial, plaintiff’s counsel offered to prove by the plaintiff, and also by one Cody Anfenger, what was said by the plaintiff at the time of making the contract, for the purpose of explaining the meaning of the words, “terms suitable to me.” Defendant objected ; objection was sustained, and plaintiff’s counsel excepted.
    The plaintiff, however, did subsequently, in answer to questions put by his counsel, give evidence concerning the conversation had at the time of signing the instrument. After having given some evidence about that conversation, he was proceeding: “and this was defined in the contract—” when defendant’s counsel objected; the objection was sustained, and plaintiff excepted.
    Mr. Anfenger was proceeding to state that conversation, and had testified: “Mr. Brown would not sign the contract that was signed there, until he knew he could have the loan for a number of years ; I and General Tochman told him that—■” when defendant objected ; the objection was sustained, and plaintiff’s counsel excepted.
    Defendant’s counsel, in the course of the crpss-examination of the plaintiff, read in evidence two written applications for loans, each signed by defendant, dated June 29, 1869, and addressed to the Metropolitan Savings Bank; one for thirty thousand dollars, on property on the southeast corner of Forty-sixth-street and Tenth-avenue; the other for thirty thousand dollars, on property on the northeast corner of Forty-fifth-street and Tenth-avenue.
    On July 26, 1869, the bank approved of a loan of twenty-five thousand dollars, on each of the applications, and indorsed its approval.
    On his direct examination, the plaintiff had testified that he presented to the principal of the bank, an application signed by the defendant.
    On his cross-examination, he was confused with respect to what applications he did present; but it afterwards appeared that the above were the only applications on which the bank acted.
    After the plaintiff had rested, the defendant was called as a witness on his own behalf. After having, on his direct examination, testified as follows :
    “ Q. When did you sign those applications (refer-, ing to the above mentioned applications) %
    
    “ A. On June 29, 1889 ; they are dated the 29th.
    “ The Court.—Did you deliver them at once ?
    
      “A. Yes, sir; I delivered them at once to the plaintiff.
    “Q. What then occurred ?
    
      “A. I then sent to the bank two or three days afterwards, to see if my loan had been granted ; I sent a boy over there—a young man—and I told the boy to wait for an answer from the president, and the president told the boy that he had no money to loan me; those were the words.
    “ Q. Where did you send the boy %
    
    “A. To the Metropolitan Savings Bank; the same place the applications were to go to.
    
      “ Q. When was that?
    “ A. That was three days after they were signed ; I made the inquiry whether my loan was granted.”
    The plaintiff’s counsel stated that he wished it understood, that he objected to all testimony of proceedings prior to making the contract.
    The objection was overruled and exception taken.
    The defendant was then asked: “What next occurred about this matter ? ” After giving, in answer to this question, some unimportant testimony, he proceeded to detail the conversation, which took place at the time the instrument sued on was signed.
    After he had got through, the plaintiff’s counsel stated that he renewed his objection to the whole of the testimony.
    The judge then remarked, that having heard no objection, he had allowed the testimony to proceed.
    Plaintiff’s counsel then stated that he had objected to all testimony on this point, and moved to strike out all the testimony of the witness in reference to the inducement for making the contract, prior to making it. The motion was granted.
    The defendant’s counsel called as a witness James Joyce, who after testifying, that at defendant’s direction, he went with a message to the Metropolitan Savings Bank, and saw the president, was asked: “What did he say to you?” The plaintiff’s counsel objected to the testimony. The objection was overruled, and an exception taken. The witness then testified, that the president said to him : “Tell Mr. Brown we ain’t got the money to loan him.” He further testified that he carried the message to Mr. Brown; and that the occurrence was somewhere about the 4th of July.
    Plaintiff ’ s counsel moved to strike out the testimony of the witness, on the ground that he placed the conversation before the contract was made. The motion was denied, and exception taken.
    After the defendant had rested, the plaintiff called the president of the bank, who corroborated the testimony of Joyce, and testified that at that time, the bank had in fact no money to loan.
    The judge, in his charge to the jury, directed them to disregard all the evidence which had been given as to what took place before the contract was signed, except the fact of defendant filing the applications, and the fact of his having sent to the bank. He also charged them, as a matter of law, that the words, “ on terms suitable to me,” meant on terms that defendant assented to after the making of the contract, and the question for the jury to determine was, whether the defendant had assented or dissented from the arrangements which were made by the plaintiff.
    To the charge as to the construction of the words, “on terms suitable to me,” the plaintiff excepted.
    The plaintiff then requested the judge to charge :
    1. That the plaintiff is entitled to a verdict.
    The court refused so to charge, and plaintiff’s counsel excepted.
    2. That all that was necessary for plaintiff to do in order to earn his commission, was to find some party who could and would make a loan upon the defendant’s property, upon the terms which defendant, at the time of making the contract, had stated would be suitable to him.
    The court refused so to charge, and plaintiff’s counsel excepted.
    3. That if the defendant, at the time of making the contract, stated what terms were suitable to him, the plaintiff had a right to rely on that statement, and that when plaintiff had found a party, in this cáse, the Metropolitan Savings Bank, who were willing and able to make the loan to the defendant, upon the terms stated to the plaintiff at the time of making the contract, then the plaintiff had done all that was necessary to fulfill the contract upon his part.
    The court refused so to charge, and plaintiff’s counsel excepted.
    4. Plaintiff’s counsel also requested the court to charge that the defendant’s testimony in regard to the letter written by him to Callender & Laurence, and testified to by Messrs. Anfenger, Callender, and Laurence, and also his testimony in regard to his visit to No. 30 Pine-street, testified to by Mr. Callender, is wholly unsupported.
    The court refused so to charge, and plaintiff’s counsel excepted.
    The jury rendered a verdict for defendant.
    From the judgment entered thereon, and from an order denying a motion for a new trial on the minutes, the appeal is taken.
    
      George Putnam Smith, attorney, and of counsel for appellant, made the following points:
    I. The justice erred in excluding evidence of defendant’ s statements at the time of making the contract in regard to the terms upon which he desired the loan. This evidence was competent and proper, (a.) As an explanation of the words “ terms suitable to me.” It tends, not to contradict or vary the written contract, but to aid in its construction, to show the real intent and understanding of the parties, and to apply the contract to its proper subject matter, and for these purposes parol evidence is always proper. Conversations between parties at the time of making a contract are competent evidence to show the sense which they attached to a particular term therein (Gray v. Harper, 1 Story, 574 ; Seldon v. Williams, 9 Watts, 9 ; Almgreen v. Dutilh, 1 Seld. 28). For this purpose, conversations some time previous to making the contract are admissible (Greenl. Ev. § 288, a ; McDonald v. Longbottom, 1 Ellis & El. 977). (b.) It was competent as part of the res gestae. “It may be laid down as a broad and distinct rule of law, that extrinsic evidence of every material fact which will enable the court to ascertain the nature and qualities of the subject matter of the instrument, or, in other words,- to identify the persons and things to which the instrument refers, must of necessity be received” (2 Taylor on Ev. § 1082 ; see also Greenl. Ev. § 286 ; Cary v. Thompson, 1 Daly, 35 ; Attorney-General v. Pearson, 7 Sim. 290, 307 ; Herring v. Boston Iron Co., 1 Gray, 134 ; Noyes v. Canfield, 1 Will. 79). “Anything said by one party in reference to the subject in controversy is admissible when offered by the other” (McClave v. Maynard, 35 How. Pr. 313). In the term “subject,” in this connection, text-writers include everything to which the instrument refers (Greenl. Ev. (Redfield’s ed.) § 286, note ; Phil. & Am. Ev. 732, note 1). Where the language used in a written contract will admit of more than one interpretation, parol evidence is proper to show the situation and motives of the parties, the subject matter of the contract, and the object to be attained-by it (French v. Carhart, 1 Comst. 96 ; Ely v. Adams, 19 Johns. 313, 316 ; Lowry v. Adams, 22 Vt. 160 ; 3 Phil. Ev. 4 ed. 1406, 1423). (c.) This evidence was competent to worlc an estoppel in favor of plaintiff. The evidence'in the case shows that something was said in regard to the terms; that in consequence and on the faith of said statements, the plaintiff and Messrs Aufenger & Callender acted, and the evidence of what these statements were, was eminently proper to estop the defendant from denying that a loan obtained in accordance with these statements was “ suitable” to him (Gaylord v. Van Loan, 15 Wend. 308 ; Crawford v. Lockwood, 9 How. Pr. 550).
    II. The justice erred in admitting evidence of the negotation between the defendant and the savings bank prior to .the contract. This at most was merely the inducement leading the defendant to make the contract, and as such was inadmissible. It makes no difference that part of this evidence was stricken out.
    ^ “When illegal evidence, properly excepted to, has been received at the trial, it must be shown that the verdict was not affected by it, or the judgment will be reversed” (Erben v. Lorillard, 19 JY. Y. 289).
    III. The justice erred in explaining in his charge the words “terms suitable to me.” (a.) What these words meant was a question for the jury (New York Belting Company v. Washington Insurance Company, 10 Bosw. 428 ; Martin v. Cope, 28 N. Y. 180 ; Daniels v. Hudson River Insurance Company, 12 Cush. 416 ; Sheldon v. Benham, 4 Hill, 131, note). (b.) The explanation was erroneous, and the jury were misled thereby.
    IV. The justice erred in his refusal to charge in accordance with the third and fourth requests of plaintiff’s counsel. 1. Each of these requests was pertinent and proper under the evidence (Holly v. Gosling, 2 E. D). Smith 262 ; McGavock v. Woodlief, 20 How. U. S. 221 ; Barnard v. Monnot, 3 Keyes, 203 ; Doty v. Miller, 43 Barb. 529 ; Van Lien v. Byrnes, 1 Hilt. 134).
    V. .The verdict was clearly against evidence and the weight of evidence. It is shown that the defendant made an application for a loan to an institution which he knew would bind itself for but one year. That a loan was granted of the desired amount. That a letter came to the defendant from this bank showing the terms of this loan. Two witnesses swear that he unqualifiedly ' accepted it. Three witnesses swear that they read a letter in which the defendant did so accept it. Mr. Callender swears that defendant called at his office and there stated his approval of the loan, and the defendant himself admits going to Mr. Callender’s office. Such a case comes under the rule: “Where the preponderance in the evidence is so decided as to lead very naturally to the conclusion that injustice has been done to a party by the judgment recovered against him, the judgment under the well settled rule applicable to such cases should be set aside and a new trial directed ” (Townsend Manufacturing Company v. Foster, 51 Barb. 346).
    
      Messrs. Wakeman & Latting, attorneys, and of counsel for respondents.
   By the Court.—Jones, J.

There are two general rules applicable to the reception of parol evidence of what occurred prior to and at the time of the making of a written contract. They are :

1. That such evidence is inadmissible to contradict or vary the terms of a valid written instrument.

2. That it is admissible to explain and apply the writing.

If the plaintiff, for the purpose of showing that the terms procured by him were suitable to the defendant, had offered to prove that he at the time of signing the instrument stated that such terms would be suitable to him, the evidence would not have fallen within the first rule. Proof that at the time of the contract certain terms were agreed upon which would be suitable to the defendant does not contradict the writing which provides that to entitle the plaintiff to his. stipulated compensation the terms of the loan must be suitable to the defendant; nor is it perceivable how such proof varies the written instrument.

The terms of the instrument do not import that to entitle the plaintiff to his commission the defendant must thereafter approve of the terms of a loan, or that he should accept of the loan; if it did, of course the evidence in question would be inadmissible.

The contract does not provide what terms the defendant should be bound to consider as suitable, nor does it give any intimation as to what defendant then regarded, or might thereafter regard, as suitable. It does, however, provide that if the terms should be suitable he should pay the stipulated compensation. We are therefore compelled to resort to parol evidence to ascertain the terms which defendant considered as suitable, in order to apply the words of the contract. It is manifest that an express approval of the terms of a loan procured after the contract would be evidence that these terms were suitable. Such approval, however, would have no greater force in fixing defendant’s liability than that which appertains to it as evidence that the terms were suitable. This, however, is not the only evidence that is admissible to fix a defendant’s • liability. His' statements, made either at the time of signing the instrument, or at any time afterwards, as to what terms would be suitable to him, are evidence to apply the words of the contract, and to show that those terms were suitable to him. Evidence that he stated that certain terms, if procured, would be suitable to him, is as strong proof of their being suitable as is evidence of his statement after they were procured that they were suitable.

The difficulty, however, is that the evidence was not offered with any such view. It was offered solely to explain the terms of the contract. What it was intended to make the contract mean by the proposed evidence we are not advised by the terms of the offer.

In the aspect in which the offer was put it was properly overruled.

The words are not technical words of any art, science, trade, business or profession, nor is there any ambiguity about them ; they are perfectly plain, and carry the intended idea to the mind as clearly as any idea can be conveyed by language. The idea conveyed by the language is that the defendant should not be bound to accept any loan obtained by plaintiff unless the terms thereof were suitable to him.

Although somewhat out of order it will be convenient here to consider the exception to the charge of the judge.

It was error to charge that the words “on terms suitable to me” meant on terms that he consented to after the making of the contract. As before observed, this is not the meaning of the words. These Words do not require that assent should be made at any particular time to satisfy. It simply requires that the terms procured should be suitable to the defendant, not that this suitableness should be assented to at any particular time.

But this error could not by any possibility have injuriously affected the plaintiff, since there was no evidence that the terms obtained were suitable, other than that of an assent thereto by the defendant after the making of the contract.

With respect to the objection by plaintiff to all testimony on behalf of defendant of proceedings prior to making the contract, it was not taken to any question to the witness pending and remaining unanswered, It must, therefore, be an objection taken either to evidence airea,dy given without objection, or to the admission of evidence anticipated to be given. In either view it was properly overruled. After evidence is given, it is too late to object; the only remedy is to move to strike out.

It is not competent to raise an objection by way of anticipation of evidence to be given. The duty of examining the words as they faff from the witness’s mouth to ascertain whether they fall within the objection, cannot thus be imposed on the judge. That duty devolves on counsel, and cannot thus be shifted. The trial judge could have permitted the objection to be taken by way of anticipation if he had seen fit so to do —but he did not see fit to do so. Even if the judge had permitted the objection to be thus taken, the case should nevertheless show that the objection was taken after questions put, and the proper motion to strike out made after the evidence bad been given.

The counsel for plaintiff intimates by his remark after the testimony was given, that he supposed his objection reached all evidence thereafter to be given, and that the overruling of it was a decision by the judge to allow such testimony. The judge, however, by his reply showed that he did not consider such to be the effect of the objection or of his ruling thereon, but that he regarded it an objection to the evidence already given. The judge having previously excluded similar testimony, there was no reason in fact or law for the attorney’s supposition. But the ruling was correct on another ground.

The plaintiff had himself given evidence respecting a conversation had by him with defendant before the making of the contract. To this extent, at least, defendant was entitled to rebut.

It may be that defendant, in his testimony, went further than he was entitled to for the purpose of rebuttal. But if so, the plaintiff should have renewed his objection when the witness commenced to give the objectionable testimony. He having failed to do this, his only remedy left was to request the court to strike out the objectionable testimony, and to direct the jury to disregard it. This request he did make, and it was granted.

The case of Erben v. Lorillard, 19 N. Y. 299, even when taken in its broadest latitude (and not as qualified and explained by Mandeville v. Guernsey, 51 Barbs 99), is not in point. That case only applies where the improper testimony has been duly and properly objected to, which is not the case here.

The testimony of the witness James Joyce was competent, as bearing on the evidence furnished by the two applications for a loan, to show that the negotations based on their application had fallen through, and that although they were approved by the bank • after the making of the contract between plaintiff and defendant, yet they did not form the basis of any negotation authorized by that contract.

This leads to the requests to charge. There being conflicting evidence as to whether the terms obtained were suitable or not, the first request was properly refused.

The next two requests are based on the assumption that there was evidence that the defendant, at the time of making the contract, stated what terms were suitable to him. As there is no such evidence, the requests were properly refused.

The last request was too broad. It was a request to charge that there was nothing in the demeanor of the various witnesses on the stand, in their manner of testifying, in the various minute circumstances surrounding the trial, in the probabilities of the statements of the various witnesses, from which the testimony of the defendant might gain support. It was for the jury to determine whether it derived support from any or all of these matters.

If the request had been to charge that defendant was unsupported by any witness who testified to the same or substantially the same facts, a refusal so to charge might have been error.

Perhaps it would have been better for the judge to have qualified his refusal to charge as requested ; but he was not bound to do so.

Judgment affirmed, with costs.  