Saunders v. Curtis

• Decision Date: 28 December 1883
• Citation: 75 Me. 493
• Parties: HUTSON B. SAUNDERS v. JOHN B. CURTIS.
• Court: Maine Supreme Court

75 Me. 493

HUTSON B. SAUNDERS v. JOHN B. CURTIS.

Supreme Judicial Court of Maine.

December 28, 1883

ON REPORT.

Assumpsit on the written promise of the defendant recited in the opinion. The writ was dated March 25, 1881, and the plea was general issue and a brief statement setting up the statute of frauds.

The opinion states the material facts.

Charles P. Mattocks, for the plaintiff.

The agreement is sufficient to take the case out of the statute of frauds. R. S., c. 111, § 1; Levy v. Merrill, 4 Me. 180; King v. Upton, 4 Me. 387; Appleton v Chase, 19 Me. 74; Eveleth v. Scribner, 12 Me 24; Barstow v. Gray, 3 Me. 409.

The agreement of the plaintiff was to be performed within a reasonable time and therefore the instrument is not void because no time is named. Atwood v. Cobb, 16 Pick 227.

The case nowhere discloses any desire or effort on the part of the defendant to rescind the agreement prior to the tender of the deed by the plaintiff, March 17, 1881.

If the defendant desired to rescind the contract he should have done so within a reasonable time.

What is a reasonable time is a question of law. In Kingsbury v. Wallis, 14 Me. 57, the court held that in the absence of all testimony tending to show that so long a time was necessary, a delay of two and one-half months was beyond a reasonable time. Here the defendant did nothing for a year, and his remark, that the plaintiff had got him, at the time the deed was tendered, shows that he had not rescinded and that he considered himself still holden by the contract.

Bion Bradbury, for the defendant, cited: 2 Pars. Contracts, 561, 562; Howe v. Huntington, 15 Me. 350; Kingsley v. Wallace, 14 Me. 57; Schlessinger v. Dickinson, 5 Allen 47.

DANFORTH J.

This is an action upon a written promise signed by the defendant of the following tenor, viz: " Ellsworth, February 25, 1880. I hereby agree to pay H. B. Saunders, thirty-five hundred dollars ($3500) when he shall be able to convey to us by good and sufficient deed the Joseph Gott lot, so called, situated on the western side of Long Island, in Bluehill Bay, and said to contain one hundred acres more or less."

As a consideration for this promise by the defendant the plaintiff offers the following writing signed by himself and which makes a part of the declaration in his writ, viz: " Ellsworth, February 25, 1880. I am to give Taylor, Curtis, Proctor and Morse, a deed of the Joseph Gott Island lot, so called, said to contain one hundred acres, more or less; conveying by said deed to them a good and sufficient title upon the payment to me by said Taylor et als. of the sum of thirty-five hundred dollars on delivery of said deed."

These two instruments are not only of the same date, but as the case shows were made at the same time and are but parts of one and the same transaction. Hence they must be construed together as constituting one contract.

The case shows what is entirely consistent with the written contract, construed as a whole, that at the time the several promises were made, the plaintiff had no title to the land and that the parties understood that it was thereafter to be obtained by the plaintiff from the owner then supposed to be Mr. Gott. The purchase of this lot was the object sought by the defendant and the conveyance of a good title was the condition upon which he was to pay the stipulated price. Until this condition was performed, no obligation rested upon him to make any payment or do any other act. A tender on his part, before this, would be of no avail in obtaining the title, for the plaintiff could not be compelled in a court of equity or elsewhere to convey a title when he had none, and if the tender under the circumstances of this case could lay the foundation of an action to recover damages, that might be a very inadequate remedy and would certainly fail to give that which the contract contemplated, the land itself. Hence no duty was imposed upon the defendant until the plaintiff first performed the condition precedent. This was first to be performed by the plaintiff if he would give force and vitality to the contract and as no time in which it was to be performed was specified, by well...