Bennett v. Bennett

• Decision Date: 10 March 1887
• Citation: 9 A. 735,79 Me. 297
• Parties: BENNETT v. BENNETT.
• Court: Maine Supreme Court

9 A. 735

79 Me. 297

BENNETT

v. BENNETT.¹

Supreme Judicial Court of Maine.

March 10, 1887.

On exceptions by plaintiff from supreme judicial court, Oxford county.

Action of assumpsit to recover the sum of $872 specified in the agreement contained in the opinion. The court at nisi prius ordered a nonsuit, and the plaintiff alleged exceptions.

S. F. Gibson, for plaintiff.

R. A. Frye and A. E. Herrick, for defendant.

EMERY, J. The evidence for the plaintiff makes out the following case: In June, 1880, Daniel P. Bennett conveyed his farm to the defendant, and in the following August married her. He lived on this farm with the defendant, his wife, till March, 1884. In May, 1883, while thus living on the farm, he gave her his bank-book, and took back from her this instrument, written by himself, and signed by her at his request: "May 11, 1883.

"On demand, I promise to pay to the order of Daniel P. Bennett eight hundred and seventy-two dollars, value received, or guaranty to said Bennett the use of the farm, my life-time, deeded to me by said Bennett.

"Roxanna Bennett."

The only question of law is the construction of this instrument. There was no loan to the defendant. Daniel wanted the use of the farm. He transferred the bank-book to obtain such use. He himself framed such instrument as he desired her to execute for that purpose. He asked for no other assurance or guaranty. He accepted this. There is no suggestion that any other was contemplated. This memorandum was to be his evidence of right to the use of the farm. It is evidence of her promise to permit him to use the farm. It provides a penalty for a breach of such promise. She was to allow Daniel the use of the farm, or pay him the sum named. She had the option, not he. 1 Add. Cont. 319; 2 Pars. Cont. 651, 657. Daniel could not recover the money, so long as there was no interference with his use of the farm. There is no evidence of any such interference. So far as the evidence shows, he left the farm in March, 1884, of his own accord, without cause, and he may go back when he will. He cannot by his own action fix upon her a liability to pay the penalty,—the money. All the evidence fails to show any such liability. It would not sustain a verdict for plaintiff. The court properly instructed the jury to that effect. Exceptions overruled.

PETERS, C. J., WALTON, VIRGIN, LIBBEY, and HASKELL, JJ., concurred.

1 Reported by Leslie C. Cornish, Esq., of the Augusta bar.