106 Me. 165 | Me. | 1909
This is a bill in equity by the plaintiff, as a judgment creditor of William H. Frank, for an erroneous attachment and seizure made by him, while acting as constable of the city of Portland, of certain goods and chattels as the property of the planitiff’s husband, but claimed to be the property of the plaintiff, herself, brought against William H. Frank, Winfield R. Frank, John Massure, and the inhabitants of the city of Portland, seeking to reform a certain written instrument purporting to be a constable’s bond given by the defendant William H. Frank to the city of Portland, for the municipal year 1907, by compelling the defendant William H. Frank as principal and Winfield R. Frank and John Massure as sureties upon said instrument, to aifix seals thereto opposite their signatures, which seals it is alleged were omitted by mutual mistake between the defendant William H. Frank and his sureties on the one hand and the city of Portland on the other; such reformation being desired by the plaintiff in order to render the instrument a technical, statutory bond and to enable her to bring suit upon it against the defendant William H. Frank and his sureties under the provisions of Revised Statutes, chapter 82, sections 14 and 65, for the purpose of satisfying the amount due on her said judgment.
The defendant, William H. Frank, was in December, 1906, elected constable of the city of Portland for the municipal year 1907. The principal duties, however, performed by him were the collection of taxes, and the service of warrants for that purpose. After his election he received from the city treasurer and collector’s
The bond thus prepared was presented to the aldermen of the city of Portland for approval as prescribed by R. S., chapter 82, section 4. Nine aldermen therefore endorsed the instrument under the words, "We hereby approve the sum and sureties of the within bond.” None of the aldermen when they affixed their names to the instrument observed the absence of seals upon it, but six of them state they would not have endorsed it had they noticed it was not sealed while two of them said they should have signed their names just the same, since they had no knowledge as to whether seals were required or not.
A careful consideration of the evidence in this case impels the conclusion that its decision turns upon the question of fact, "Was there a mutual mistake?” The plaintiff does not seek a rescinding of the contract nor an enforcement of it for any purpose, but for the
Not only is the evidence insufficient to overcome the finding of the sitting Justice but seems to us rather preponderates in favor of his conclusions. Whatever seven of the nine aldermen may have thought, the testimony of the respondents clearly indicate that they neither knew nor cared, whether the law required the instrument which they signed, in order to make it effective, should be sealed or not. They were entirely ignorant of the law. It therefore does not appear that they ever intended to sign a sealed instrument. They undoubtedly thought they were signing a document that would qualify the defendant, William H. Frank, for the discharge of his duties, but whether that document should be sealed or unsealed, as a matter of law, they had no knowledge. The mistake then could not be mutual, as the minds of the parties to the instrument did not meet in a common intent.
This decision of the case renders it unnecessary to consider the exceptions and the other points raised.
Appeal dismissed. Decree of sitting Justice affirmed with one bill of costs.