Savage v. Whitaker

15 Me. 24 | Me. | 1838

The opinion of the Court was drawn up and, at a subsequent term, delivered by

Weston C. J.

Payment of the note in suit is resisted by the defendants, on account of the alleged unlawfulness of the consideration. By the regulations of the Postmaster General, which he had legal authority to make, no contract, or bid for a contract, can be transferred, without his written approbation first had and obtained under the penalty of a forfeiture of such contract or bid. The answer given to this is, that the consideration for the note in question, was a promise or engagement, that such transfer should be made; and that this is not to be regarded as unlawful, inasmuch as the written consent of the Postmaster General might be obtained. We are inclined to adopt this construction; but in our judgment, there has been manifestly a failure of consideration.

Bunker, who had a right to the contract, had agreed to assign it to the plaintiff, and the plaintiff agreed to transfer and assign to' the defendants all the interest he had in said 'contract, “ in consequence of said assignment from said Bunker.” This assignment, made or to be made, is assumed as the basis and subject matter of the plaintiff’s contract. Bunker had undertaken to make that effectual. If it failed, the plaintiff had nothing to transfer, and the defendants obtained nothing. If that took effect, he had still a duty to perform, in causing the interest to be transferred to the defendants. An engagement to do a certain thing, involves an undertaking to secure and use effectually all the means, necessary to accomplish the object; and among these, the most important and essential was, to obtain the written consent of the Postmaster General. It was not the mere chance, that this might be effected, which formed the consideration for the note. The defendants were to stand in the place of Bunker, and to enjoy the emoluments, which were expected to be derived, from the contract with the government.

The case finds, that the assignment from Bunker failed, the Postmaster General being dissatisfied with his course, and having actually contracted with another. No fault is imputable to the defendants. That which the plaintiff undertook to sell, and for which the defendants engaged to pay a valuable consideration, has been arrested and defeated by an authority, over which they had no control. It seems to us, that it would be neither equitable nor just, to, hold them to pay the stipulated price. The verdict is accordingly set aside; and upon the facts reported, we are of opinion, that a nonsuit should be entered.

Plaintiff nonsuit.