Hamlin v. Otis , 36 Me. 381 ( 1853 )

Tenney, J. —

By the agreement, which makes a part of the case, the plaintiffs were appointed commissioners by the several parties to divers petitions for partition, and for reviews of divers other cases of petition for. partition, the petitions being pending in Court, to perform certain services, under these petitions, and by virtue of the statute applicable to the subject. The plaintiffs acted and returned the reports, which have not been accepted. This suit is for the recovery of compensation for the services rendered by them under the agreement. Whether the plaintiffs did all which was designed under the agreement, or not, does not appear. Whether so much was done by them as was sufficient to enable the Court to make a final disposition of the subjects submitted to them, cannot be known so long as the reports are not accepted. Consequently there is one uncertainty at least, of a right in the plaintiffs to maintain any action, in their names jointly, or severally, against one or all the parties to the agreement.

It is deemed quite clear, that one only of the many parties named in the petitions cannot be legally bound to pay all the costs, attending the execution of the commission, provided that every thing has been done by the commissioners, which they undertook. The parties to the agreement, did not understand that this expense could fall upon one of them entirely, so that the plaintiffs could recover of that one, and turn him over to his actions against the others for contribution. Abbott v. Butman, 2 Greenl. 361. The agreement gives the power to the commissioners to apportion the costs and charges, which should arise under the commission, among the various parties as they should deem just and equitable. Until this apportionment is made, the plaintiffs have omitted a duty which devolved upon them under the agreement. O ne party is under no liability to the plaintiffs, till they have determined the proportion which should fall upon him, in justice and equity, and given him notice thereof. The .case does not find that this has been done or attempted, and consequently he has been guilty of no neglect, and has broken no promise made by him. Other grounds of defence, it is not necessary now to consider further. Plaintiffs nonsuit.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.