15 Me. 228 | Me. | 1839
The case was continued for advisement, and the opinion of the. Court was afterwards drawn up by
The plaintiff contends, that as Esther Curtis had a life estate in the property about which the question arises, all the defendants having signed the contract, the action may be sustained against all or one of them. That having agreed to sell, the defendants are bound to give a proper deed. That, as Worth told Mrs. Curtis he was ready to perform, and she and Mr. Walker refused, he has a right to sustain his action. For he insists, that the contract was a valid one; that he had paid five dollars in part; that the refusal excused him from making a tender of the money, and that if Walker had not a license, he should have shown it.
In regard to contracts in relation to things which are not physically impossible, but the impossibility of which arises from circumstances peculiar to the party contracting, as if a man contract to sell an estate the title to which is in another person ; though equity will not enforce a specific execution, that will not discharge the person contracting to sell, from paying damages to the party, for any loss he may sustain, by reason of his being imposed upon or disappointed ; but will not bind him to any damages as a compensation for the non-performance of the thing contracted for itself, that, as being impracticable to the party, not requiring any. And though a contract be a foolish onej yet it will hold in law, and the person so contracting, it is said, ought to pay something for his folly. As where one in consideration of 2s. 6d. paid, and of £4, 17s. 6d. to be paid to him upon his performance of the agreement, contracted to deliver to B. two grains of rye com on the Monday following, and so on progressively doubling the quantity on every Monday, during the year; it was objected, that it was impossible on its face, as it would amount to such a quantity as all the rye in the world was not sufficient to produce. Certainly the result could not be determined without a process of careful arithmetical calculation. But the law was against the improvident contractor, and the cause was compromised, on repayment of the half crown and costs. Poivcll on Contracts, 161,162, 163.
If the contract be such as the plaintiff contends, it would seem that “ neither party intended to trust to the personal security of the other, and that neither party was obliged to perform his part of the agreement, unless the other party was ready and willing at the same time to perform his part also.” Howland v. Leach & al. 11 Pick. 155.
The defendant’s counsel have urged upon our notice, that the contract on which the suit is founded was not sigued by Worth, that he does not bind himself to take the property, though the paper must have been written with the expectation that he was to sign, unless he was willing to let the subject lay at loose ends, till Mr. Walker could ascertain whether he lawfully could convey his
The first Step for the plaintiff, for the purpose of fixing blame upon Walker, would be, one would imagine, to show that at the time of the contract he was duly licensed to sell and convey the property at private sale.
But according to the plaintiff’s owri proof in the case lie goes on to extract and exhibit evidence from Walker’s mouth, calculated, not to impeach his willingness, under different circumstances to perform, but to justify his refusal to comply with the agreement, as his bondsman objected to his selling; and that he had no power to sell. Though the first reason, without the last, might be insufficient. Yet in establishing the last, the 'plaintiff proves a complete justification of the defendants, by the terms of the contract, in proving that Walker had no power to sell-.
The parties were dealing for the whole farm of about 100 acres, in which Esther Curtis had right's, and the heirs of her husband had rights. But theré is no allusion to the separate rights of either Esther, Mehitabel, Eliza, or Jane, the infant, as to extent and distinct value of either, in the contract. They made the whole dependent on the fact of Walker’s lawful ability to convey. The widow’s reason for refusal, in presence of Mr. Bradbury, was, that Walker could not convey. Mr. Simpson “ heard her give Mr. Worth to understand, that she should not comply with their agreement, and she said, he must not hold on to the contract too hard, that Walker could not convey, and she did not wish to, as she could not have the interest of the money, as she did the use of the farm.” The first reason she assigned was sufficient for her protection ; and we are not to turn against her the simple, honest confession of her disinclination to lose the use of the farm, out of which she was to support some of the children, unless by law, we are compelled to do so.
In the case cited by the plaintiff, Forster v. Fuller, 6 Mass. R. 58, Parsons C. J. says, “ as an administrator cannot by his promise bind the estate of the intestate, so neither can the guardian by his contract bind the person or estate of his ward.”
There is full danger enough of sacrificing the interest of minors, with all the guards which the law can throw about them.
Such a contract by an administrator, before a license obtained for that purpose, is void. It could not be enforced at law nor in equity. It is calculated to repress all fair competition for obtaining the best price for the infant’s property. Bridgewater v. Brookfield, 3 Cowen, 299.
The nonsuit is confirmed.