Jewett v. Ricker

• Decision Date: 26 July 1878
• Citation: 68 Me. 377
• Parties: MARCIA S. JEWETT v. CHARLES RICKER.
• Court: Maine Supreme Court

68 Me. 377

MARCIA S. JEWETT v. CHARLES RICKER.

Supreme Judicial Court of Maine.

July 26, 1878

ON EXCEPTIONS.

ASSUMPSIT on a parol promise, to recover compensation for the flowing by the defendant's dam, of the plaintiff's interest in certain land, from March 12, 1872, to date of writ September 7, 1876, at $25 per year.

The declaration also contained a count for money had and received to cover three years of the same time, when the mill was occupied by Frank Ricker, the brother of the defendant, on the ground that the defendant had agreed with Frank to assume and pay the debts, and received money or its equivalent therefor.

The plea was, never promised, with a brief statement that the defendant did not own the flowage nor the land flowed.

The plaintiff, November 23, 1863, mortgaged the land to Henry S Jewett.There was evidence of the foreclosure of the mortgage, and of a sheriff's sale of her right of redemption, December 5, 1870.On April 13, 1872, there was a record in the registry that " this mortgage is fully discharged and satisfied by payment of the within notes " and on the same day, two deeds passed to Benjamin Duren, under whom the defendants claimed title, one of quitclaim from Henry S. Jewett, and the other of warranty from the plaintiff, " reserving the right of flowage as now flowed by Ricker's dam, and reserving the yearly payments for flowage as I have heretofore received the same, and excepting the right and title of Henry S. Jewett in said premises, which has this day been purchased by said Duren."

The presiding justice ruled that the plaintiff had sufficient interest in the land to maintain the action, and that a parol agreement to pay the price sued for would be sufficient.The verdict was for the plaintiff for $106.53; and the defendant alleged exceptions.

A reservation in a deed of " the right of flowage as now flowed by R.'s dam, and the yearly payments as I have received them," entitles the grantor to recover the yearly payments against the occupant of the dam on his parol promise to pay the same.

S. S. Brown with E. O. Howard, for the defendant, contended,

I.That, under the evidence, the plaintiff had no title to the land at the date of her deed to Duren; that Duren's title by Henry S. Jewett's quitclaim was complete without the conveyance of the plaintiff, and therefore there was nothing that could be reserved.

II.If she had any title, that after parting with it by her deed to Duren, it was immaterial to her whether there was much or little or any flowing or not; that there was no basis for the reservation to rest upon.

III.That the promise was within the statute of frauds.

J. Wright, for the plaintiff.

APPLETON C. J.

The plaintiff owning the Richardson farm,...