
    (Sixth Circuit — Lucas Co., O., Circuit Court —
    January Term, 1899.)
    Before King, Haynes and Parker, JJ.
    HARVEY P. PLATT v. HARVEY SCRIBNER.
    
      Contract partly written partly oral — Effect of statute of limitations—
    (1) . By sec. 4980, tí. S., an action on a promise in writing may be brought within fifteen years from the time a cause of action accrues thereon, and this is true though such promise is but a ■ part of the contract, and other material terms thereof£rest in parol.
    
      Same — Proof of oral terms — Admissibility—
    (2) . Where it evidently appears from the written instrument that only a part of the terms are expressed therein, parol evidence is admissible to show other terms not inconsistent with those expressed ; and wnere no consideration for the contract appears in the writing, the fact that there was a consideration may be proven orally.
    
      Pleading — Denial sufficient — When—
    (3) . Where the correctness of averments in the petition is disputed, the adverse party claiming a different state of facts not amounting to confession or avoidance or new matter, but which, if established, would defeat the action, it is not necessary for such adverse party to set out the facts as he claims them to be, but a denial is sufficient, and under such denial the party’s testimony giving his version of the affair would be admissible.
    
      Consideration — Burden of proof—
    (4) . In an action on a contract the burden of_'proving a'consideration is on the plaintiff, and where the consideration pleaded is denied, and the answer unnecessarily details a state .[of facts Which, if established, would disclose a want of consideration, such burden is not thereby shifted on the defendant.
    
      Divisible contract — Consideration applicable to one part only—
    (6). Where a contract is plainly divisible, it may be shown that-the consideration only extended to one part of the contract,, while the other part was not sustained by aN°nsideration.
    Error to the Court ef Common Pleas of Lucas county.
   Parker, J.

This proceeding is brought by Harvey P. Platt, plaintiff below, to reverse a judgment in favor of Harvey Scribner, defendant below.

The plaintiff brought his action against the defendant in error, Harvey Scribner, upon a certain written instrument reading as follows:.

“Toledo, Ohio, April 12th, 1887.
“I have an understanding with Harvey Scribner"to this effect: He has brought suit v. certain parties in U. S. court to set aside foreclosure of mortgage v. T. & I. R. R. and to collect certain claims v. said R. R,,and he is to have •| of all collected. I am to have 1/5 of the amount Scribner is to receive, i. e., he to have 80 per cent, and I 20 per cent, of the -J he is to receive. The claim this day placed in Scribner’s hands for collection owned by V. W. Granger $680.37. Scribner to settle with Granger and retain i of all received of which I am to have -J,or j of the whole.
“H. P. P.
‘ ‘ Harvey Scribner, ’ ’

Since it did not appear upon the face of this instrument' that there was any consideration for the promise of Harvey Scribner to share his compensation growing out of the collection of these claims with Mr. Platt, plaintiff avers in his" petition certain facts showing the relations and surrounding circumstances of the parties, so as to place the court in po«sition to construe and understand this instrument and ap-' ply it to the subject matter, and also makes certain averments showing that there was, according to plaintiff’s claim, a consideration for the promise. He says in that connection that.

“Prior to the 12th of April, 1887, certain, the Toledo & Indianapolis Railroad Company, a corporation theretofore organized under the laws of the state of Ohio and owning a railroad extending from the city of Toledo, county of Lucas,through the county of Wood, in said state, had become insolvent, leaving a large amount of claims for labor and material unpaid. A number of the claimants against said company had consulted this plaintiff with reference to the collection of their claims, and a number of other claimants had consulted the defendant with reference to the collection of their claims^- and it was thought desirable by this plaintiff and the defendant that the claims should be united and prosecuted at onetime, and this plaintiff agreed with the defendant that he would turn over to the defendant all the claims which he held or represented against said the Toledo & Indianapolis Railroad Company and would put the defendant in possession of all the facts and circumstances and information which he had with reference to said claims, and that he would thereafter turn over to the defendant all claims which he might receive against said company and would render any assistance which might be desired by defendant in and about the prosecution of ¡said claims.”

And he avers that it was in consideration of these things ■done and to be done by the plaintiff that the defendant ■made this written promise, and that he has performed in all respects as he promised, and that the defendant 'has received such an amount by the settlement or collection ■of these claims as that the plaintiff became entitled to receive $1248.00, and for that amount he asks judgment.

For his amended answer to this petition the defendant ■says, among other things, that he admits the signing of this instrument;'admits the facts and circumstances surrounding the transaction substantially as alleged by the plaintiff; that he did make collections upon which the plaintiff would be entitled to receive this amount, provided he had performed as he had promised. But he denies that plaintiff has performed; denies that there was any consideration for the promise on defendant’s part, and then states this, which he denominates his second defense:

“This defendant for his second defense further says, that on April 12th, 1887, at the time of the signing of the written paper, a copy of which is set out in plaintiff’s petition, the said plaintiff represented to this defendant that he could and would settle the claims in this defendant’s hands for collection, with A. W. Scott, Esq., the attorney representing the persons against whom this defendant was trying to collect said claims, and the said plaintiff then and there orally agreed that in case this defendant would sign the paper set forth in plaintiff’s petition, said plaintiff would settle the said claims with the said Scott within a short time from said date, which promise on the part of the said Harvey P. Platt was and is the only consideration for the signing of the written paper set forth in plaintiff's petition. This defendant further says that the said plaintiff did not settle said claims, and did not do or perform his said oral contract, but on the other hand, the said plaintiff, within a few days after the signing of said paper and making of said contract, disqualified himself from carrying on any negotiation for the settlement of said claims, by engaging in an angry controversy with the said Scott, and never thereafter attempted to settle said claims, but wholly neglected the same, and all that waB done towards the prosecution and settlement of said claims, was done and performed by this defendant.’’

To that a reply was filed, containing a denial of this new matter. The parties went to trial to a jury. Mr. Platt testified on his own behalf,detailing the circumstances under which this instrument was signed, and giving his version of his promises which he said constituted a consideration for the written promise of Mr. Scribner, in that connection detailing certain conversation between himself and Mr. Scribner with reference to this matter leading up to the signing of the instrument.

Mr. Scribner went upon the witness stand in his own behalf and undertook to give his version of these conversations, as well as his version of the promises made or undertakings entered into orally by the plaintiff, constituting what plaintiff claimed was the consideration for defendant’s written promise; and in the course of his examination as a witness he is enquired of and testifies as follows:

‘‘Q. Coming down to the making of that' contract and the negotiation between you and Mr. Platt, tell what was said and done between you in regard to the making of that contract?”

That is objected to, and there was some discussion between counsel and the court. The witness is finally permitted to answer, as follows:

‘‘A. In the first place, on the date that this contract was drawn, Mr. Platt told me he had got some claims against the T, & I., and knew a party that had got a number of them, and wanted to know if he got them, what I would collect them for,and how much I would give him,and I told him we might ask, say one-half of what I collected, and if he brought me some claims I would divide my half with-him.”

And the witness says that refers to the half of the claims that Mr. Platt proposed to bring to him,and referred to the Granger claims; that that was agreed upon. Then he says:

‘‘We commenced to discuss the question of making some kind of an arrangement by which he was to have a share of the whole thing.”
‘‘Q. State what was said? A. I said to Mr. Platt that so far as the American Finance Company and Col. Lemmert and those people were concerned, they were my friends, I had been fighting for them, and they for me, and he could not help me with them any, because I was solid; with them; but the man I was after was Burke; if he could influence Mr. Burke,or could influence Mr. Burke’s counsel and secure a settlement,it would be some benefit to me, and he says: ‘My relations with Scott are very close. We are good friends,’ and he says ‘I think I can persuade Mr. Scott to settle these claims.’ Well, I didn’t realize then, and I said to Mr. Platt, ‘If you will do that I will be very much obliged to you.’ And he was running into our office quite a lot,and he says ‘If I should do that, I should have a share of what I make.’ And I says ‘How much do you think you should have?’ He says ‘I think I should have one-half.’ I says ‘I will tell you what I will do with you; if you will influence Mr. Scott and bring around a settlement of these claims, I will give you twenty per cent, of what we realize on that settlement.’ ‘Well’,he says,‘I will agree to do it’, ‘and’ he says, ‘I guess we had better put it in writing,’ and he went out and back to his office, and I was sitting at my desk covered with all these papers, busy at work, and he brought in that piece of paper and showed it to me,and I read it over and says ‘I guess that is right.’ As I handed it back I said,‘I want it distinctly understood, Mr. Platt, this agreement is made’—

Thereupon an’objection was made, and there was more discussion, but further along he takes up the story as follows:

‘‘I signed the paper, and as I held it in my hand I says ‘Mr. Platt, I want it understood that unless you bring about a settlement of these claims, that you are not to have anything.’ That was the substance of it, if he succeeded in settling the claims — -unless he succeeded in settling the claims, he was not to have anything. I handed him the paper,and if Mr. Platt had not answered that and said ‘All right’, I would not have given him the paper,”

That part of the answer in which he states that he would not have given Platt the paper if he had not answered ‘‘All right”, was stricken out, and properly so. And defendant farther testifies on page 52:

‘‘He said he would agree to that, and went out of our office and into his office. I proceeded with my work for a little while,and when he came in with that paper and asked me if it was all right(referring to Exhibit ‘ ‘ 2”). I said ‘Yes’, and he took and signed it and said: ‘I want it understood that you are not to have anything unless you make the collection and settlement,’ then I handed him the paper’.”

This was objected to by counsel for the plaintiff, on the ground that it was an effort by oral evidence to vary or add to the conditions of a written contract. Exceptions were duly taken to the ruling of the court permitting this evidence to go to the jury; and the court, in the course of its charge, gave the jury certain instructions, which were also excepted to. I may say that reading extracts from the court’s charge does not give one a fair view of what the court did instruct the jury upon these various questions presented, but it is too long to read here,and I will confine myself to the reading of those parts which were excepted to:

‘‘Upon this subject I instruct you as a matter of law governing you and controlling you as follows: If you find from the evidence that the delivery of the Granger claims had nothing whatever to do with the written promise, and formed no part of the consideration for the same whatever, but find from the evidence that the contract respecting the Granger claim had been fully closed and consummated,and that the consideration for the execution of the written memorandum known as Exhibit No. 2 was claimed by Scribner, that Platt could and would settle the claim with A. W. Scott, the attorney representing the persons from whom Scribner was trying to collect the claims, or would use his efforts in that direction, and you further find that said Harvey P. Platt orally agreed that in case that the said defendant would sign this paper marked Exibit No. 2, he, the said plaintiff, would use his influence and his efforts in causing a settlement, and you further find that there was no consideration for the execution of Exhibit No. 2, and you further find from the evidence that said Harvey P. Platt did nothing whatever towards effecting a settlement or endeavoring to effect a settlement through A, W. Scott, or Burke, or anybody, and did not make any effort in that direction, but refused or neglected to do anything, the plaintiff would not be entitled to recover the 20 per cent, of Scribner’s fees upon the claims other than the Granger claims. In that event Platt would only recover the $46,40 and interest. * * * The substance of it is, that if you find from th3 evidence that the oral consideration as claimed by Scribner was the only consideration for this written promise on the part of Platt, and that the oral promise wss that Platt was to use his influence for effecting a settlement through Scott, and if he did nothing whatever in the performance of his oral promise, it would be an absolute and entire failure of consideration, and equivalent in the eyes of the law to no consideration.”

The court further charged the jury that if they should find that there was any consideration whatever for the promise, the plaintiff would be entitled to recover; that, in order to defeat the claim,there must be a total failure of consideration.

Now, the first question presented in respect to this matter is, whether the claim was barred by the statute of limitations? The action was not prosecuted until more than six years after the cause of action is alleged to have arisen.

It is contended on behalf of defendant in error that the six years rule applies, and we are cited to a great deal of authority from other states to the effect that where a contract is only partly in writing, as this one evidently is, (there being material terms or promises upon the one side that are not reduced to writing, so that it is as to certain terms a unilateral contract,) the six years limitation, or whatever the limitation may be governing unwritten oral contracts, governs. In our state, it would be six years, upon oral terms. But our statute is somewhat different from the statutes of those states in which these holdings have been made. They have always been made, so far as we have been able to find, in states where the statute provides for limitations upon actions upon contracts, either oral or in writing.

Our statute, section 4980, reads as follows:

“Within fifteen years: An action upon a specialty, or an agreement, contract, or promise in writing,”

Now, this is clearly a promise in writing, and we think that the fifteen years limitation applies,and that the claim is not barred. This seems to be settled by the following cases: 18 Ohio State, 391; 20 Ohio St., 190; (both of which were actions upon subscriptions to capital stock), and in 15 Ohio, 130(an action upon a promissory note),3 Bulletin,893 (in the Hamilton county District Court, an action .upon a bill of lading).

Where it evidently appears from the written instrument that only a part of the terms are expressed, parol evidence is admissible to show other terms not inconsistent with those expressed. In the case at bar all that is to be done by either party is not expressed. What Mr, Scribner is to do is not definitely stated; bui it is fairly implied perhaps by his writing that he is to perform some service in and about making these collections. The only thing that is provided for distinctly in this written agreement is the basis of the division of the fees or compensation. In this case the written part of the contract expresses no consideration, Upon its face it is a nudum pactum. It became necessary for the plaintiff to allege and prove a consideration, The consideration alleged consisted of the turning over to Scribner of the Granger claims, and the agreement on the part of the plaintiff that he would perform certain services; that is,that he would do something to aid Scribner in and about enforcing the collection or obtaining a settlement of all the claims, including the Granger claims. Plaintiff says that he has duly performed the contract on his part by turning over the Granger claims and by aiding as promised.

These allegations as to consideration and as to performance, are denied by Scribner, And then he proceeds to aver that the consideration consisted of promises on the part of Platt to do something else, something different — that is, to bring about a settlement through the exercise of hia influence upon certain persons in control of the adverse interests; and he says plaintiff has not performed, in whole ■or in part.

Now, we do not regard this so-called second defense set up by Scribner as anything more in effect than a denial of the consideration alleged in the petition. It was not at all necessary to aver it as it is averred. All competent evidence on the subject could have been introduced under the denial. It is not matter in confession and avoidance,so far as the question of consideration is'concerned; it is in effect to say — and that is argumentative — 'that “since the promise to plaintiff forming the consideration for my promise is as I state it, it cannot be as he states it.” We do not re.gard it as a distinct allegation of a condition precedent, at least not as that alone; but, even if it has that aspect or character, it nevertheless forms the consideration for the promise of Scribner, and since it becomes necessary for the plaintiff to prove a consideration, and in doing so he is obliged to produce oral evidence, i. e. to testify himself of certain conversations between himself and Scribner which he says embodied the agreement on his part constituting ■such consideration, and Scribner is permitted by the law to give his version of the same conversations, we cannot see how the court could do otherwise than hear and consider the whole matter and therefrom determine the true agreement, and whether it had been performed. Scribner then is not to be limited or confined as a witness to a denial of the statements made by Platt as to these conversations. Though disproof of the consideration alleged by the plaintiff, or of performance of the promises as alleged by plaintiff would be sufficient, Scribner is not to be thus limited in his testimony. With this testimony properly admitted, what disposition is to be made of it? It must be given due consideration in so far as it tends to disprove plaintiff’s case.

The form of pleading adopted by Scribner, i. e. setting-up the alleged second defense as if it were new matter necessary to be thus pleaded, has served, we think, to obscure the real question, to give it a false aspect, and to confuse court and counsel.

In charging the jury, the court instructs them that as to-this matter the burden of proof is upon the defendant; whereas, as we view the matter, the whole of the evidence bore upon the question as to whether the written promise of defendant was supported by a consideration, and if the consideration consisted of something to be done — something to be accomplished by the plaintiff to entitle him to recover, whether he had done or accomplished the thing substantially as promised. And we think that on this issue the burden of proof was on the plaintiff from the beginning to-the end of the inquiry. See Leisy & Co. v.Zuellig, 7 Cir. Ct,, 423.

The evidence received did not tend to alter the express-terms of the promise, or to make it otherwise than a promise to pay 20% of Scribner’s share of the amount collected on the claims when collected.

In the case of Holzworth & Sebastian v. Koch et al., 26 Ohio St., 33, cited by counsel for plaintiff, a defense was made to a promissory note by the sureties that the payees promised to furnish goods to the principal in certain amounts and at certain times, and extend certain credit to the principal, and that this formed the sole consideration of the note, and that plaintiffs — payees—had not furnished the goods or credit agreed upon. The trial court instructed the jury inter alia that if plaintiff’s promise, as set up in the answer, was the sole consideration of the note, and plaintiffs had wholly failed to comply with or execute the promise, then the sureties were entitled to a verdict. Welch, J., speaking for the court, says, “We see no error in these instructions of the court.” etc. The instructions in the case at bar were, we think, in accordance with this decision. We see in the proof introduced by defendant here, and the effect given to it under the charge of the court, nothing resembling the conditions and modifications attempted to be engrafted upon the written contract in the case cited.

We have disdussed this as if the alleged consideration for the turning over of the Granger claims had been eliminated from the problem, This must have been done by the jury, else, under the charge of the court, they could not have arrived at the verdict found.

That this might be done upon sufficient oral proof without violating any law of evidence, we have no doubt. This question, also, has to do with the consideration. The contract is plainly divisible in the sense that there are distinct promises with respect to distinct claims or classes of claims. The agreement is to divide the fee on the Granger claims o.n the basis of one half to Scribner 'and one-half to Platt. The fee from the other claims is to be divided four-fifths to Scribner and one-fifth to Platt. It was competent to show that the agreement as to the Granger claims was complete before negotiations were entered upon as to the other claims, and that the turning over of the former formed no part of the consideration for the promise to divide fees received on the latter. Oral proof of this character did not tend to vary any of the terms of the writing. The jury was distinctly told, and properly, that if the turning over of the Granger claims formed any inducement to or consideration for the promise to divide fees or commission on the other claims, then even though promises made by Platt had not been performed, there was not a total failure of consideration, and plaintiff had a right to recover, With these instructions before them the jury found for the defendant. We think the evidence justified this finding. We find no error in the admission of evidence or the charge of the court, or otherwise in the record, requiring a reversal of this judgment, and it is therefore affirmed.

Smith & Baker, for Plaintiff in Error.

C. W. Everett, for Defendant in Error,  