Shaw v. Philbrick

• Decision Date: 12 August 1930
• Citation: 151 A. 423
• Parties: SHAW et al. v. PHILBRICK.
• Court: Maine Supreme Court

151 A. 423

SHAW et al.

v. PHILBRICK.

Supreme Judicial Court of Maine.

Aug. 12, 1930.

Exceptions from Superior Court, Aroostook County.

Action by Annie Shaw and others against Fred L. Philbrick. Directed verdict for defendant, and plaintiff excepts.

Exception overruled.

Argued before PATTANGALL, C. J., DUNN, STURGIS. BARNES, and FARRINGTON, JJ., and PHILBROOK, A. R. J

Earlon K. Guild and H. T. Powers, both of Ft. Fairfield, for plaintiff.

Cyrus F. Small, of Caribou, for defendant.

DUNN, J.

An action of assumpsit on the written promise of the defendant to pay plaintiffs §3,000 on the foreclosure of a real estate mortgage. Plea, general issue; brief statement sets up no consideration. Directed verdict for defendant. Case forward on bill of exceptions. Exception overruled.

The mortgagor, Mr. Horace W. Patten, a Limestone man, died in 1925. Two of the plaintiffs, children of the decedent, him surviving, are his heirs at law. One of these plaintiffs is an infant. Minority and the consequent right to avoid, which the brief for the defendant calls to attention, may give a motive for not making a contract with a minor, but the disability of infancy is a personal privilege. Towle v. Dresser, 73 Me. 252. An infant may sue, though he may not be sued on his contract There are some exceptions to this general rule, but none of present relation.

The third plaintiff, sole witness on that side of the case (admission supplementing her testimony), testifies that she is grandmother to the other plaintiffs and creditor of the estate of their deceased father. Besides, she identifies, as having been given to her by the defendant, in the presence of the major heir, the writing underlying this action, which instrument this opinion presently recites. Of the writing, she informed the minor plaintiff. Such, briefly told, is what the witness says.

Three years after the death of the mortgagor, the mortgage was assigned to the defendant, who gave newspaper notice of his intention to foreclose the right of redemption. Ten days afterward, that space less than the original one-year foreclosure period then remaining, the writing was signed and delivered. It reads:

"Limestone, Me., March 3, 1928.

"I, Fred Philbrick of Fort Fairfield, County of Aroostook and State of Maine, hereby agree to pay tie sum of Three Thousand ($3000) dollars to Mrs. Annie Shaw, George Patten and Beecher Patten all of Limestone, in County and State aforesaid, as soon as the mortgage which I own on the farm in Limestone, known as the Horace Patten farm, said farm is bounded and described as follows; on the east by Boundary Line; on south by highway; on west by land of Fred Philbrock; on north by the south line Caswell Plantation; said mortgage is to be foreclosed by me and this amount of $3000, to be paid as soon as foreclosure expires; providing said foreclosure of mortgage expires in my own name.

"Fred L. Philbrick.

"Signed this third day of March 1928, in presence of Louis A. Cyr."

On the expiration of foreclosure, defendant was still assignee of the mortgage.

Counsel for plaintiff argues that, from acceptance of the writing, absence of redemption, and expiration of foreclosure in the name of the defendant, sufficient consideration for his unit promise necessarily ensues.

The words in the document express the meaning convention has attached to them. There is but an offer, or agreement, as defendant himself in testifying puts it, to pay the offerees, now plaintiffs, a certain sum of money, if foreclosure of the mortgage expire in the name of the offeror; he being this defendant. The source of the offeror's inspiration, the writing does not state. Nor does the writing look to mutual interchange of promises.

If one man promise to pay another man a definite amount of money providing he will call for it at a particular time, the contract is binding; because performance of the condition is an inconvenience to the promisee. The doing of the act ipso facto performs the obligation of him to whom the promise is made. Train v. Gold, 5 Pick. (Mass.) 380, 384. The same may be said of a promise to reward the apprehension of a criminal, where making the arrest, within a...