
    Tuttle v. Burgett’s Admr.
    
      Contract — Place of performance — • When not agreed tipon, obligee may designate — Ch al declarations at time of execution of written instrument — • When inadmissible in evidence.
    
    1. "Where no place of performance of an obligation is agreed upon by the parties, the obligee, as a general rule, may designate any reasonable place of performance.
    2. Under a mortgage conditioned that the mortgagor shall furnish the mortgagee and his wife during life, comfortable rooms, food, clothing, medicine and medical attendance in sickness, and provide them with the necessaries and comforts suitable for persons of their age and situation in life, no place being specified where such support shall be furnished them, they are not. obliged to receive it at the house of the mortgagor, but are entitled to have it furnished at such reasonable place or places as they may select.
    3. When, with knowledge of such selection, the mortgagor fails to furnish the support required by his contract, and declares his intention not to do so, or pay for any support which may be furnished by others, the condition of the mortgage is broken, and an action of foreclosure may be maintained for the reasonable value of the support provided by others, though it was provided without the request of the mortgagor, or demand upon him to furnish the support required.
    4. The oral declarations of a party to a written instrument, made before or at the time of its execution, of an intention or purpose not therein expressed, or different from that to be derived from its terms, are not within the rule which permits extrinsic evidence of the situation of the parties and of the surrounding circumstances when the instrument was executed, and are inadmissible in an action on the instrument where its reformation is not sought.
    5. A grantee who has agreed to support his grantor during life, in consideration of the conveyance of the property, will not be discharged from his obligation by the bringing of a suit to set aside the conveyance and recover back the property, where the suit has been abandoned and dismissed without trial, and the grantee has not been disturbed in the possession or enjoyment of the property.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Ashtabula comity.
    William Burgett, who was the owner of a valuable farm in Ashtabula county, and of a considerable amount of personal property, together estimated to be worth about $10,000, being of advanced years, and his wife an invalid, conveyed his farm, his wife joining in the conveyance, and transferred his personal property to his son-in-law, Philander W. H. Tuttle, upon the consideration that he would support Burgett and his wife during life, furnish them with comfortable rooms, food, clothing, medicine and medical attendance in sickness, provide for each of them the necessaries and comforts suitable for persons of their situation in life, and at their death place a marble slab properly inscribed at the grave of each, and also pay to Burgett $50 a year so long ás he should live.
    To secure the performance of his obligation, • Tuttle and his wife united in the execution of a mortgage of the farm back to Burgett. The condition of the mortgage, which, it is admitted by the pleadings, contains the entire contract relating to the support of Burgett and wife, is as follows:
    “The condition of this deed is such, that whereas the said P. W. H. Tuttle has this day received the above described lands, together with an amount of personal property this day delivered, in consideration of supporting said William Burgett, and Mary Burgett, during’ the term of their natural lives. To furnish each of them with comfortable rooms, food, clothing-, medicine and medical attendance in sickness, and at their death to place at the grave of each of them a marble slab, properly inscribed. To pay to William Burgett $50 each year, and to carefully provide for each of them the necessaries and comforts of life, suitable for persons of their age and situation in life.
    “Now, if the said P. W. H. Tuttle, his heirs, assigns, executors’ or administrators, shall well and truly perform all covenants and agreements, according to the tenor thereof, to the said William Burgett and Mary Burg’ett, the above deed shall be void; otherwise the same shall remain in full force and virtue in law. ’ ’
    The deed and mortgage were executed on the 4th day of April, 1884, and soon thereafter Burgett and his wife left the farm where thejr had lived for many years and went to reside with Tuttle in the village of Geneva some miles distant from the farm, and remained there receiving their support from Tuttle and his wife until February following, when they became dissatisfied and went to the home of their son Henry, which was near the farm, • and after staying there a short time went to the home of their son-in-law, Woodruff, and remained there until the date of their death, which occurred on the 28th day of January, 1886, both dying on the same day. While Burgett and his wife were at Henry’s, he took care of them, providing everything- necessary for their comfortable support, under an agreement with his father that he should be paid a reasonable compensation therefor; and they were in like manner provided for by Woodruff while they remained at his house, under a like agreement. Administration having been granted on the estate of William Burgett, Henry and Woodruff presented their claims for the support furnished by each respectively, which were allowed, and suit was brought in the court of common pleas of Ashtabula county, to foreclose the mortgage for the amount due on them.
    When Burgett and his wife were leaving- Tuttle’s house, he forbid their going, and declared, in substance, in the presence of Henry, that he would not provide support for them while they were away, nor pay for any furnished to them; and afterward gave that information to Woodruff. Tuttle alleges in his answer that he was always ready and willing to furnish and provide at his home in Geneva everything he was required to do by the condition of the mortgage, but was prevented by the absence of Burgett and his wife.
    Soon after leaving Tuttle’s, Burgett brought a suit to set aside the deed and mortgage and recover back the farm and personal property, charging that the conveyance and transfer were obtained by fraud and undue influence while he and his wife were incapacitated by age, sickness and their enfeebled condition, to transact business.
    These charges were denied by Tuttle, and after Burgett’s death the action was dismissed without trial. The bringing of that action was set up as a defense in the foreclosure suit, the claim being, that it constituted an abandonment and repudiation of the contract, and released Tuttle from the further performance of the condition of the mortgage. Other issues were made which it is not necessary to notice. After trial and judgment in the common pleas court, the cause was taken on appeal to the circuit court, where all the issues, were found for the plaintiff, and a decree of foreclosure rendered, from which error is prosecuted here. It appears from the bill of exceptions that the court, on objection made by the plaintiff’s, counsel, excluded evidence offered by the defendant of verbal declarations which it was claimed Burgett had made while the negotiations between him and Tuttle were in progress, to the effect that if the arrangement was consummated Burgett expected he and his wife would live at Tuttle’s, in Geneva, or that they were to live there. Any furtlier facts necessary to an understanding of the questions raised in the case, will be stated in the opinion.
    
      Burroios d¿ Jerome, and F. B. Smith, for plaintiff; in error. '
    
      Howland <& Stcvrhey, for defendant in error.
   Williams, J.

In behalf of the plaintiff in error, it is claimed, (1) that under the agreement of the parties as expressed in the condition of the mortgage, Burgett and his wife were obliged to receive their maintenance and support at the residence of Tuttle, and therefore, the failure or refusal to furnish it elsewhere constituted no breach of the condition; or (2), if such is not the legal effect of the condition as written, it was competent to prove by the verbal declarations of Burgett, made contemporaneously with the execution of the contract, or prior thereto, that the support and maintenance were to be provided at the house of the mortgagor; and (3), that the commencement of the suit by Burgett to set aside the conveyance was an abandonment and repudiation of the contract by him, which excused further performance of it by Tuttle.

1. The agreement as expressed in the mortgage contains no stipulation which makes it a condition to the right of the mortgagee and his wife to the support which Tuttle thereby agreed to furnish, that it be accepted at the home of the latter, or which requires that it be either furnished or received at that, or any other specified place. It is silent on that subject, and creates a general obligation on the part of Tuttle to supply Burgett and wife with what ever he agreed to furnish them, without limitation as to the place where performance of the agreement should he made, or might he required. The obligation is expressed in the language of the promisor who executed the mortgage, and according to a well established rule, should be taken most strongly against him, if there be doubt or ambiguity m its terms. If it were the intention of the parties that performance of the obligation could be required only at a particular place, that intention could easily have been expressed, as could any other condition qualifying the rights of the promisee. As a general rule, where no place is mentioned for the performance of an obligation, it is to be performed to the obligee in person, who may designate any reasonable place of performance; and that rule has been held applicable, in many cases, to contracts of the kind we have under consideration. Wilder v. Whittemore, 15 Mass., 262; Crocker v. Crocker, 11 Pick., 252; Thayer v. Richards, 19 Pick., 398; Pettee v. Case, 2 Allen, 546; Hubbard v. Hubbard, 12 Allen, 586; McArthur v. Gorden, 126 N. Y., 597; Stillwell v. Pease, 4 N. J. Eq. (3 Green), 74; Rowell v. Jewett, 69 Me., 293.

In some of the cases cited, the question arose upon the construction of wills, requiring devisees or legatees to provide support for persons named; while in others, it was made on mortgages with conditions similar to that of the mortgage in question; and the rule as stated is recognized in all'of them. In the case of Wilder v. Whittemore, it was held that: “Upon a mortgage, conditioned that the mortgagor shall maintain and support the mortgagee during life, the mortgagee has the right to support wherever he shall choose to reside, so that needless expense be not created to the mortgagor. ’ ’ And in Pettee v. Case, the court held, that the condition of a mortgage, not differing in any essential feature from the one before us, was broken when the mortgagor after knowledge that the persons entitled to support are at a reasonable place, where they intend to receive their support, declares to the person in whose family they are that he will not pay for their support at that place, and dqes not pay therefor, though no special demand is made upon him for the support. It is said in the opinion of the court, that under such a contract the mortgagor “was bound to support the mort gag’ees, without their making- a demand for support. And they were not bound to receive support at his house, but had a right to be supported wherever they might choose to live, provided they causo no needless expense. ” We concur in that interpretation, and find nothing in the obligation of theplaintiff in error which requires a different construction, or gives it any different effect.

Contracts of this nature, entered into by persons of declining years when their capacity for business has in some measure become impaired, with children or relatives who receive not only a full consideration for their engagement, but usually something- ' in way of bounty also, should receive a liberal construction in favor of such elderly people, and the corirts have enforced a corresponding performance in their behalf. A comfortable support and maintenance, which Tuttle’s agreement bound him to furnish, must have been understood by the parties to be such as would comfortably situate Burgett and his wife, as well as sripply them with adequate food and clothing, and other necessaries of life; and to afford them that comfort, they should be allowed reasonable liberty in the choice of their situation and surroundings, there being no express limitation in that respect contained in the contract. To deny them that privilege, and compel them to remain under the control of the party whose pecuniary interest it is to be relieved of the burden at the earliest moment, would place them in a condition of dependence scarcely less in degree than that of persons under guardianship, and occasion a constant dissatisfaction and discomfort which would defeat an important purpose, and the real spirit of the contract, though there should be the strictest observance of its letter in the'supplies provided for them; and that restraint should not be imposed unless it is made to appear with reasonable certainty that such was the agreement of the parties.

The cases of Parker v. Parker, 126 Mass., 433, and Currier v. Currier, 2 N. H., 75, are cited in support of the construction claimed by the plaintiff in error. In the former of these cases, in giving construction to a will by which the testator gave to his widow during life the use of all his property, including the homestead farm where he and his family had always lived, and to his unmarried daughter a small sum of money, and “a home and maintenance during the time she remained unmarried, ” it was held to be the intention of the testator that the daughter should have “the home and maintenance” given her, on the farm where the family lived. It was evidently expected by the testator that the widow would remain on the homestead devised to her, and that the daughter while she remained unmarried, should live at home with her mother. In giving that construction to the will, the court said.: “Where a testator provides in his will, that his wife, child or other person shall be supported and maintained by his executor, or where the condition of a deed or mortgage recites that the grantee or mortgagor shall support the grantor or mortgagee, and the instrument does not point out that the support shall be provided in a particular place, then the party so entitled may have the support where, under reasonable limitations, he may choose to reside. But if the instrument points out the place where the support shall be furnished, it is not the right of the party entitled to receive it to demand that it shall be furnished elsewhere. Each case must be decided on its own facts, looking to the instrument and the surrounding circumstances.” In the Currie case, a son-in-law, in consideration of a conveyance of land made to him by his father-in-law, agreed to pay the latter’s debts and provide necessary support for him and his wife; or, on failure to do so, to lease to them for life the farm where he resided ; which latter clause it was held, sufficiently indicated the home of the son-in-law as the place of performance of his agreement. . The court say that where, in contracts of that description, the parents retain a life lease or mortgage interest in the farm they occupied before, “the place of performance would then seem to be the house before, occupied by the parents.” What would be the proper interpretation of a mortgage, securing an engagement to support the mortgagee, taken upon lands granted to the mortgagor as the consideration of his promise, was not before the court, and the statement of what seemed to that court would be the proper construction of such an instrument concerning the place of performance, is against the weight of authority, as will be seen by reference to the cases we have hereinbefore cited, which, in our opinion, establish the better rule. But conceding the force of the circumstances mentioned as indicating the home occupied by the parents, or that of the testator, as the place for the performance of such an engagement, they are without force as tending to fix any other place where support shall be furnished ; and therefore, neither of the cases relied on by the plaintiff in error sustains his contention that his home in Geneva, remote from the Burgett homestead, was the place where he should perform his contract; and, as neither of the parties claim the homestead was such place of performance, the cases loose their applicability, and leave the obligation of Tuttle in that class where no particular place of performance is specified.

2. The record shows that on the trial in the circuit court, counsel for the plaintiff in error asked of one of his witnesses what Burgett said, prior to the execution of the deed and mortgage, “as to where he was to live if this contract was entered into.” An objection to the question was sustained, and an exception taken, counsel stating that he expected ‘ ‘ the answer would be that at the time the contract was made, it was understood between them, and Mr. Burgett said that he expected, if the contract was made, to live at Mr. Tuttle’s in Geneva; that he was going to live with Mr. Tuttle; that one inducement in making the contract was to get off the farm.” The exclusion of that testimony is assigned for error, and it is contended that it was admissible under the rule which permits proof of the circumstances surrounding the parties when a written contract is entered into.

There can be no doubt that in giving- construction to a written instrument regard may be had to the situation of the parties, and the surrounding-circumstances; and these may be shown by parol, to enable the court called on to interpret the instrument, the better to understand its terms, and arrive at the intention of the parties when not clearly expressed. But we do not understand that the oral declarations of a party made prior to or at the time of the execution of the instrument, of an intention or purpose not thérein expressed, or different from that properly derived from its terms, are within the rule; and unless the evidence excluded by the court below had that effect, it was wholly immaterial and its exclusion of no legal significance. It was competent to show, as was done at the trial, that after the deed and mortgage were delivered, Burgett and wife went to live at the home of Tuttle; but, since by the terms of the mortgage they were entitled to receive their support and maintenance at such reasonable place as they might select, the fact that they accepted it for a time at Tuttle’s house, was not inconsistent with their claim that they had a right to receive it elsewhere; nor did it establish a practical construction of the mortgage at variance with that claimed by the plaintiff in the action.

3. The claim most earnestly pressed by the plaintiff in error is, that the suit of Burgett to set aside his conveyance and recover back the property transferred to Tuttle, relieved the latter from the further performance of his agreement. It may be accepted as a general principle, that where one party refuses performance of his part of an executory agreement, or denies his obligation to perform, the other party cannot be compelled to perform Ms part of the contract; but the application of that principle here is not so apparent. Burgett had fully performed his part of the contract made with Tuttle, by the conveyance of the farm and delivery of personal property in accordance with its terms. Nothing remained for him to do; but the contract was executory on the part of Tuttle only. Having concluded he had been overreached in the transaction, Burgett sued to rescind and recover what he had parted with under it. Tuttle might have accepted the offer of rescission thus made, which, if followed with a reconveyance and surrender of the property, or by a decree restoring the property, would undoubtedly have discharged him from all further liability. But he resisted the suit,which was abandoned and dismissed without trial, leaving the parties in the same situation as if it had never been commenced; and if the claim he now makes were sustained, he would be enabled to retain both the property and the consideration he agreed to pay for it. That, we think, he cannot be allowed to do. While he retained the property his obligation to furnish a support for Burgett and his wife was a continuing one so long as they lived, which could only be discharged by performance, or voluntary relinquishment. The trial court found there had been a failure to perform; and the suit afforded satisfactory evidence of a purpose on the part of Burgett to secure the whole of the property for his use, instead of so much only as could be enforced under the mortgage, from which an intention to fore-go the benefits of the mortgage, if he failed to establish his right to the restoration of the property, could not reasonably be inferred. The case of Jenkins v. Stetson, 9 Allen, 128, on which, reliance is placed by plaintiff in error, rests upon the general principle we have stated. There, a suit was brought on a bond by which the plaintiff agreed to support a widow and her two daughters during their natural lives, in consideration of which the daughters agreed to leave him and his heirs all of their personal property, including what they should receive from their father’s- estate. The mother and one of her daughters having died, the surviving daughter took up her residence with a brother-in-law, and afterward left her personal estate, by will, to her sisters. There was no evidence that the plaintiff had been requested to furnish any support to the daughter after she went to her brother-in-law’s house, but she was requested by the plaintiff to return to his house and receive her support there. It was held, that under the circumstances of that case, a failure by the plaintiff to tender the support at the brother-in-law’s house was not a breach of the bond. But it was not held that the daughter was not entitled to receive it there if she had so requested, nor that a failure to so furnish after demand made would not have been a breach. The proposition declared is: “It is not sufficient proof of a breach of a bond to support another during his natural life, to show that he left the house of the person bound to furnish such support and resided elsewhere for several years, without at any time requesting- him to fulfill his agreement'or in any way exhibiting to him an intention or desire to hold him to the performance thereof. ” It will be observed that the agreement under which the party was entitled to support in that case, was executory on her part, she having agreed to leave all her personal property to the plaintiff as the consideration for his promise to support her; and that she did not perform her-part of the agreement, but left her property to other persons. That feature' of the ease, the court say, tended “very strongly to show that it was her intention, without the knowledge or assent of the plaintiff, to avoid the obligation of the contract into which she had entered with him, and, by ceasing to receive support at his hands, to get rid of the performance of her part of this mutual obligation. Under such circumstances, a tender of performance by the plaintiff was not necessary, and no inference of a failure or omission by the plaintiff to fulfill the agreement would have been warranted.”

We see nothing in that case which conflicts with the conclusion we have reached in this one. Here the contract, as we have seen, entitled Burgett and his wife to have performance of it by Tuttle at such reasonable place as they should select, and he having declared his intention not to furnish them support while absent from his house, no demand upon him was necessary to an action on the mortgage for the reasonable value of their support by others while so absent.

Judgment affirmed.  