Brinley v. Tibbets

• Decision Date: 01 June 1830
• Parties: BRINLEY v. TIBBETS
• Court: Maine Supreme Court

7 Me. 70

BRINLEY v. TIBBETS

Supreme Judicial Court of Maine, Somerset

June, 1830

THIS was an action of assumpsit, brought to recover the amount of a promissory note dated Oct. 28, 1824, given by the defendant to the plaintiff, payable in one year; and it came before the court in a case stated by Parris J. from evidence adduced before him.

It appeared that the plaintiff was a citizen of Massachusetts who owned land in Starks in this county, on a lot of which the defendant resided. The defendant contracted for the purchase of this lot, with John Pitts, Esq., the plaintiff's agent, giving him four promissory notes for the purchase-money, amounting in all to $ 305 60, of which the note in suit was one. At the same time Mr. Pitts gave the defendant a written stipulation, signed by him as agent for the plaintiff, in which he undertook to procure from the plaintiff a warranty deed of the land, in the usual form, on the defendant's giving back a mortgage of the same to secure the payment of the purchase-money; and that if the deed should not be procured by Pitts, the notes should be returned to the defendant. The mortgage was accordingly prepared and executed by the defendant; who sent it, in Nov 1825, with an order on Mr. Pitts, requesting him to receive the mortgage and his contract aforesaid, (which was also sent by the same messenger,) and deliver the deed; or else return the notes. His order was forthwith presented and demand made but Mr. Pitts declined to comply with it; observing that he should have the deed ready at the register's office or at the defendant's house, by the first of sleighing, of all which the defendant had notice.

It further appeared that Mr. Pitts did not receive the deed from the plaintiff till late in the spring of 1826; and that forthwith, as soon as the roads were conveniently settled for travelling, he went to Starks to tender it to the defendant but found that he had removed to a distant place.

The defendant continued to reside on the land till March 20, 1826; when he sold and conveyed all his interest in the land to one Lovejoy, for one hundred dollars, taking also his obligation to take up the notes held by the plaintiff, and give his own in their stead, if Mr. Pitts would relinquish the interest; which, however, the latter declined to do. The defendant at the same time stated to Lovejoy that he was to have had a deed of the lot in the January preceding; but for some reason or other he did not obtain it. Lovejoy entered under his deed, and has ever since remained in possession.

Upon the facts thus stated and proved, it was agreed that the court should enter judgment upon nonsuit or default, for the party entitled to recover.

H. W. Fuller, for the plaintiff.

Cutler, for the defendant.

OPINION

The opinion of the Court was delivered in Cumberland, at the adjournment of May term, in August following, by MELLEN, C. J.

The note in suit is one of four given on the same day, viz. Oct. 28, 1824, for a certain lot of land, described in the receipt, given on the same day by Pitts, the agent of Brinley. In this receipt and contract no time is specified, within which the deed therein described was to be procured by said Pitts, though the note in suit was made payable in one year from...