Preble v. Hunt

• Decision Date: 19 January 1893
• Citation: 85 Me. 267,27 A. 151
• Parties: PREBLE v. HUNT.
• Court: Maine Supreme Court

27 A. 151

85 Me. 267

PREBLE

v. HUNT.

Supreme Judicial Court of Maine.

Jan. 19, 1893.

(Official.)

Action on a promissory note by Melvin Preble against Walter L. Hunt. Defendant had judgment, and plaintiff brings exceptions, and moves for a new trial. Motion and exceptions overruled.

H. J. Preble, for plaintiff.

Jasper Hutchings, for defendant.

WHITEHOUSE, J. This is an action on a promissory note for $250, dated January 28, 1880, signed by the defendant, and payable to the order of the plaintiff four months after its date, with interest.

It is not in controversy that the following agreement, signed by the plaintiff, was received by the defendant as the consideration for this note, namely:

"$250. Bangor, Jan. 20, 1880.

"Received of Walter L. Hunt $250 for one original share of the Bluehill Central Mining Property, as per written agreement, which entitles the owner to his proportional number of unassessable shares in the corporation, when formed, procurable on presentation of this receipt to the secretary of the company by the holder, or his order.

"Melvin Preble, Trustee."

It is an elementary principle of simple contracts that a promise may be a good consideration for a promise, when there is complete mutuality of engagement, so that each has the right, at once, to hold the other to a positive agreement. 1 Pars. Cont. 479; Chit. Cont. 50, note a; Woods, Byles, Bills, 121, note. A promise of a thing of value is itself valuable, when made on a consideration; so that, if two persons simultaneously promise each to the other some valuable thing, this constitutes a good contract. Bish. Cont § 76; Babcock v. Wilson, 17 Me. 372.

It is true the plaintiff signed the above agreement as trustee, but the evidence shows that he was not in fact acting as trustee at that time, for the corporation therein named had not then been organized, and he was still owner of the property referred to, in his own right. This agreement must therefore be deemed the individual contract of the plaintiff, involving a personal responsibility and undertaking on his part to cause something of value to be transferred to the defendant as a consideration for the note in suit. It was therefore correctly ruled by the presiding judge that the evidence did not disclose an original and entire absence of consideration for the note. But it is settled law that the entire failure of consideration has the same legal effect as the total want of it Woods, Byles, Bills, 130, (222;) Jenness v. Parker, 24 Me. 289; Small v. Clewley, 62 Me. 156; Hodgdon v. Golder, 75 Me. 293, 295. This principle constitutes the legal groundwork of the defense to this note.

The defendant assumed the burden of overcoming the presumption of valuable consideration arising from the note itself, and sought to nullify the effect of the prima facie case thus made by showing that the plaintiff failed to perform his engagement respecting the delivery of the certificate of stock in the corporation according to the terms of the agreement signed by him. This instrument acknowledges the receipt of $250 "for one original share" of the Bluehill Central Mining Property, "as per written agreement." This last phrase apparently refers to some other written agreement than the one above recited, but no such written agreement appears in the case, and there is no evidence that it ever existed. This contract must therefore be interpreted, like all others, according to the clear meaning and manifest intent disclosed by its own terms, and construed in the light of the facts and circumstances known to both parties. It states that the "original share" for which the note was given entitles the owner to his proportional number of unassessable shares in the corporation, when formed. Everybody knows, and hence the court judicially knows, that shares in a corporation mean shares of the capital stock of the corporation. It is not in controversy that the corporation was duly organized by the name of the Bluehill Central Copper Mining Company, with a capital stock of $500,000, divided into 100,000 shares of unassessable stock, and that the defendant's proportional number would have been 1,000 shares; one original share being one-hundredth part of the property. And it further declares that these unassessable shares shall be "procurable on presentation of this receipt to the secretary of the company by the holder, or his order."

Upon this branch of the case the presiding judge instructed the jury as follows: "I construe this contract as a conveyance of the interest in the mining property by the plaintiff to the defendant, to be evidenced, not by a deed of one-hundredth part of the mining property, which was real estate, but to be evidenced to him by his proportional number of unassessable...