Read v. Davis

35 Me. 379 | Me. | 1852

Tenney, J.

— The counsel of the respective párties, in their arguments, agree in the construction of the note in suit, that the defendant promised the plaintiff to pay him the amount thereof, in four years, if Laureston Stetson, should then have paid the defendant the sum of $400. If at that time, the sum of $400 should not be paid, payment was to be made on the note in suit, as soon as that sum should be paid by Stetson, afterwards.

The note purports to be for a valuable consideration; and the facts in the case show, that on April 17, 1838, the plaintiff conveyed his farm to the defendant, as security for certain indebtedness to him; that on June 14, 1843, that indebtedness was the sum of $359,52. Afterwards the plaintiff negotiated with Stetson for a sale of the farm, worth $400, and two other parcels of land worth $200, which the plaintiff by his own means, had procured to be conveyed to the defendant as necessary appendages of the farm. In pursuance of an arrangement between the plaintiff and Stetson, the defendant gave to the latter a bond, to convey to him all this real estate on the payment of six hundred dollars, in yearly payments of one hundred dollars and interest annually, according to his six notes. The bond, the notes of Stetson, and the note in dispute, were all given on Nov. 23, 1843, and are parts of the same transaction. Before August, 1849, and previous to the institution of this suit, which was Nov. 17, 1849, the defendant had received in payments from Stetson, and from the income of the land, described in the bond, including a sum from the Androscoggin and Kennebec Rail Road Company, as the consideration of a parcel of the farm conveyed to them, about the sum of $300. On Oct. 3, 1851, the defendant, in consideration of the sum of $369,26, previously paid, gave to one Cook a bond to convey the farm to him, not including the other two parcels described in the bond to Stetson. In Dec. 1846, the defendant not insisting upon a forfeiture of Stetson’s right under the bond, but upon his request, voluntarily, surrendered to Stetson his six notes, and the bond to him was canceled, without the consent or knowledge of the plaintiff.

Stetson did not pay the sum of $400, within four years of the date of the note in suit, and was relieved of all liability to do so, in about three years, by the act of the defendant. And it is insisted by the plaintiff, that the payment has failed to occur through the fault of the defendant. If this proposition is established by the facts, on the application of a well settled principle of law, the note is to have the effect, which would have been given to it by a fulfillment of the condition.

By the terms of the note, the defendant was not to be exonerated from its payment by the failure of Stetson, to perform promptly his several promises; on the other hand, it seemed to be apprehended, that the amount of $400 might not be paid within four years ; and to secure the plaintiff from risk, of losing his claim, against the defendant, it was not only stipulated that, if Stetson should pay $400 in four years, without reference to the time, when he was bound to pay each hundred dollars, and interest on the whole annually, the condition of the defendant’s note would be performed; but the plaintiff was entitled to the amount of his note, whenever after the period of four years, that amount should be paid by Stetson.

Stetson’s notes being given up, upon a surrender of his rights under the bond, before the time, when these partiej, according to the agreement in the note, contemplated that Stetson had the right to pay, and would pay his notes, the defendant has done that, which would of itself prevent the fulfillment of the condition; and if he shows that by adhering to the contract between himself and Stetson, the fulfillment of the condition, would have been impossible, it is not perceived, that the plaintiff has been the loser. But he certainly disregarded the understanding between himself and the plaintiff, implied by the whole transaction, and in order to relieve himself from liability, the burden is upon him to show, that the abrogation of his contract with Stetson has not been, and could not have been injurious to the plaintiff. This he has failed to do. But it is shown on the other hand, that Stetson, though unable to pay the amount of $400, in four years, had the means of paying the entire consideration of all the land described in the defendant’s bond to him, at the maturity of the note last payable. Under this evidence he can with no propriety contend, that the payments would not have been made, in fulfillment of the condition of his own note, when he has by his own free act, totally unauthorized by the plaintiff, destroyed the means of ascertaining, whether the condition would have been fulfilled, but has rendered performance absolutely impossible, under the agreement.

It is contended for the defendant, that the plaintiff has mistaken his remedy; and that as he paid for the two parcels of land, near the farm, which he caused to be conveyed to the defendant, he is entitled by a suit in equity against the defendant to obtain a title thereto. We are not now called upon to decide in advance such a question. But it is manifest, that the defendant had a valuable and ample consideration for the note, which he gave the plaintiff. He has now that consideration in his own hands for which, under a contract, as yet executory, he has received a sum, which, with other receipts of money on account of the farm, is a sum equal to that, which if received of Stetson, would have been a performance of the condition. He has wrongfully done that, which relieved Stetson from all obligation to make the payment, that would have been a performance of the condition, and not having shown, that such payments would not have been made, it is not improper to say, that the rescission of the contract between him and Stetson has precluded the performance of the condition. Defendant defaulted.

Shepley, C. J., and Howard, Rice and Appleton, J. J., concurred.