Brackett v. Brewer

• Decision Date: 03 December 1880
• Citation: 71 Me. 478
• Parties: DANIEL H. BRACKETT v. GEORGE BREWER.
• Court: Maine Supreme Court

71 Me. 478

DANIEL H. BRACKETT v. GEORGE BREWER.

Supreme Judicial Court of Maine.

December 3, 1880

ON EXCEPTIONS from superior court, Cumberland county.

The facts appear in the opinion.

At the trial the attorney for plaintiff requested the presiding judge to give the jury the following instructions:

" 3. That if the defendant by fraudulent representations induced the plaintiff to sign papers, he is estopped from claiming any different construction of said papers from that represented to the plaintiff to induce him to sign the same.

4. That if the plaintiff, relying upon representations made to him by the defendant, signed certain papers without reading the same at the request of the defendant, the defendant is afterwards estopped from claiming a different construction than that given the plaintiff at the time of signing the same.

5. That a party who contracts to execute a deed is bound to prepare and deliver the deed, and a deed, to be effectual to pass the title, must be acknowledged and delivered.

6. That if the defendant at any time had become a party to an agreement with the plaintiffs and others, that the church property in Freeport should be conveyed to the plaintiff and others in consideration of money paid to him by them, and said defendant as trustee, or otherwise, held said property under his control, if he refused to give a deed making such conveyance, then he is liable to the plaintiff, and the verdict should be for the plaintiff."

John J. Perry, for the plaintiff.

The agreement of the defendant to convey the property upon the reception of the money to discharge the Whitmore mortgage and, after the money was furnished, his refusal to carry out the agreement and convey the estate though demanded, the jury must have found, and that made out a case for the plaintiff. Richards v. Allen, 17 Me. 297; Bassett v Bassett, 55 Me. 127; Calais v. Whidden, 64 Me. 249; Cook v. Doggett, 2 Allen 439.

But the jury were misled by the erroneous rulings and refusals to rule. The presiding judge in his charge to jury gave defendant the benefit of a defense not in the case, either by the pleadings or testimony. He said all the way through the charge that the defendant was an agent of the trustees; and the instructions, in so far as they related to the trustees and the agency of the defendant, were erroneous. R. S., c. 12, § 19; Yarmouth v. No. Yarmouth, 34 Me. 411; P. B. Corp v. Lamson, 16 Me. 224; Andrews v. Ins Co. 37 Me. 256; Plummer v. P. L. Ass'n, 67 Me. 363; F. Company v. Lewiston I. Savings, 68 Me. 43; P. C. Company v. C. Com's, 21 Pa. 9; Persine v. C. & D. C. Co. 9 How. 172; Knowles v. Beaty, 1 McLean 41; Farnum v. B. C. Company, 1 Sum. 46; B. B. Corp v. Whiting, 29 Me. 123; Berry v. Yates, 24 Barb. 199; S. M. D. Corp v. Ropes, 6 Pick. 32; Bank of Augusta v. Earles, 13 Pet. 519; T. R. R. Co. v. Kneeland, 4 How. 16.

The court should have given the sixth requested instruction, it was of vital importance and material to the issue. The fifth request should have been given. Tinney v. Ashley, 15 Pick. 546. The fourth request should also have been given.

In the closing argument, counsel cited: Patterson v. Snell, 67 Me. 559; Parker v. Hill, 8 Met. 447; Hawkes v. Pike, 105 Mass. 560; Brown v. Brown, 66 Me. 316; Stebbins v. Jennings, 10 Pick. 171; Weld v. May, 9 Cush. 181.

H. G. Sleeper, for the defendant, cited: State v. Reed, 62 Me. 129; Macintosh v. Bartlett, 67 Me. 130; Harriman v. Sanger, 67 Me. 442; Boothby v. Woodman, 66 Me. 387; Foye v. Southard, 64 Me. 389; Ins. Co. v. Hodgkins, 66 Me. 109; Sanderson v. Brown, 57 Me. 308; Rumrill v. Adams, 57 Me. 565; Kilpatrick v. Hall, 67 Me. 543.

VIRGIN J.

The case finds that in September, 1874, one Lapham conveyed to the defendant and one Senter, a parcel of land in Freeport, upon which the grantees, in the following spring and summer, erected, and so far finished, a meeting house that it was dedicated according to the rites and usages of the Methodist Episcopal Church, and has ever since been used and occupied by the Methodist Episcopal Church of Freeport, as their place of worship; that the purchase money for the land was of the funds contributed by different individuals towards the building of the meeting house; that in August, 1875, the grantees mortgaged the premises to one Whitmore to secure their note to him for $800, money loaned for the construction and completion of the house; and that, at the date of the deed from Lapham, no trustees of the church had been appointed.

The plaintiff introduced testimony tending to prove that he and seven other persons named advanced to the defendant money enough to discharge the Whitmore mortgage, in consideration of the express verbal promise of the defendant to appropriate it for that purpose, and cause the mortgaged premises to be conveyed to the plaintiff, his seven co-contributors, and E. P. Oxnard and W. H. Bailey, the last two of whom held claims for materials which entered into the construction of the meeting house; that the plaintiff advanced $100, and his associates the balance, of the sum necessary to discharge the mortgage; that the defendant paid and caused the mortgage to be discharged; and that the plaintiff before the commencement of this action, demanded of the defendant a fulfillment of his promise--to cause a conveyance of the premises to be made to the persons named--and that he refused.

To this action (brought for recovering back the sum advanced by the plaintiff to the defendant, upon the ground that the defendant refused to convey the premises to the plaintiff and others in accordance with his alleged agreement), the defendant, in addition to the general issue, pleaded by way of brief statement that he received the money as agent and for the use of the Methodist Episcopal Society of Freeport, and that the plaintiff knew it.

In support of these issues on the part of the defendant, there was evidence tending to show that the defendant never promised or agreed with the plaintiff to convey to the latter or to him and others the church property, as security for the money paid by them for raising the mortgage; that the defendant and Senter--no trustees then having been selected--took the conveyance of the land from Lapham in their own names, but in fact in trust for the church, which was well known by the plaintiff and other members of the society; that they mortgaged the same with the meeting house thereon to Whitmore by direction of the society; that the plaintiff was appointed by the society a committee to raise money by subscription for the purpose of paying off the mortgage; that the defendant was the active business man of the society, and never received the money from the plaintiff in any other capacity than agent of the society, which the plaintiff well knew; that the defendant and Senter, in May, 1875, executed and acknowledged a deed of the meeting house property to George Brewer and three others, regularly appointed trustees of the Methodist Episcopal Church, which remained in the defendant's possession until November, 1877, when it went into a scrivener's hands to enable him to make another deed, and was finally recorded in January, 1879; that in the absence of the preacher, the defendant was the proper and authorized custodian of all the papers of the church and board of trustees; that on October 10, 1877, the plaintiff and ten others signed an obligation under seal, thereby agreeing to accept a conveyance of all the property of the church in full for their respective claims, provided the conveyance is made within thirty days, and not to commence any action against the property within the thirty days, but to sell the property for the payment of their claims, as shall be determined by the major part of the demands; that on November 10, 1877, the defendant and two others--then the duly constituted board of trustees of the church--signed a deed of the meeting house property to the persons mentioned in the obligation above named, to hold the same in proportion to their respective claims; that this deed bears the name of no witness or certificate of acknowledgment, and has always remained in the hands of the defendant's attorney, who wrote it, until it was brought to court and put into a case as evidence at the time this case was tried. The defendant also put into the case...