Otis v. Adams , 41 Me. 258 ( 1856 )

Tenney, C. J.

The payment of the notes in suit was to be made, without reference to any right which the intestate had, under the contract, entered into at the time the notes were given, and they were payable absolutely at maturity. And the plaintiff is entitled to judgment for the amount thereon, unless the defendant can be allowed something upon his claim seasonably filed in set-off, or the notes were for illegal consideration.

The statement of facts and the agreement of parties do not authorize the Court to judge of the intentions of the intestate in making the purchase of the demands of Pease, which were the consideration of the notes in suit, and they cannot therefore determine, whether the contract under which they were purchased,, was in violation of R. S., c. 158, § 16.

The plaintiff having been a partner with Pease in the transaction, of which the giving the notes was a part, stands in no better position to resist the claim in set-off, than that which Pease would hold, if he were prosecuting the suit in his own name.

To enable the defendant to test his right to the allowance of his claim in set-off, it is agreed, that if the Court should be of the opinion that it can be allowed, wholly or partially, upon proof of certain facts, supposed, the case is to stand for trial.

We do not suppose the parties designed in their agreement, that there should be no trial, if some immaterial fact, mentioned as one of the conditions thereof, should be deemed incompetent, provided the other facts stated in the conditions, if proved, would establish the defendant’s claim.

Exertions of the defendant, as administrator, in collecting the demands without costs to Pease, could not be proved, as competent evidence. A personal trust was reposed in the intestate, which could not be executed by his representative after his death. But all exertions required by the contract may have been fully made by the intestate; and no further exertions were necessary on his part, if he had lived, to secure the object of Pease. If it were otherwise, the rights of the intestate, if he had not died, would not thereby have been lost, as secured by the contract; and they are preserved to the defendant, as the representative of the estate, in the same manner as they would have been to him.

The right of the intestate to return the demands with an exact account of all sums of money, received before the end of two years, at the expiration thereof to Pease, and thereupon hold him to his promise to pay the balance to said Adams, remaining unpaid of the sum of one hundred and ninety dollars and twenty-three cents, was not made dependent upon the use of proper exertions of the latter in collecting the demands without cost to said Pease. If at the end of two years from the date of the contract, the said Adams had not collected as much from the notes as he had paid, he was to be at liberty to return them, <fcc. This contract is still subsisting, and if the material facts mentioned in the agreement of the counsel of the parties to the suit can be proved, it is not perceived that any obstacle exists to the allowance of the whole or a part of the claim filed in set-off.'

Action to stand for trial.

Rice, Cutting, Appleton, and Mat, J. J., concurred.