Chapman v. Lothrop , 39 Me. 431 ( 1855 )

Shepley, C. J.

— This suit is upon a bond, not produced, made by defendants to the plaintiff, on Feb. 29, 1848, •containing a condition providing in substance, that Lothrop should pay what he and the plaintiff were to pay for building a vessel, which they had built together; and should pay the plaintiff $300.

The plaintiff caused a suit to be commenced on that bond on June 11, 1849, which was prosecuted until October, 1851, when it was settled by the attorneys of the respective parties, by the surety paying $371,33, being the full amount of all claimed to be due for damages and costs; and the demands and bond were surrendered as satisfied. The attorney for the plaintiff, who made that settlement, testifies that he did not settle any other demands than those sued for in that action, having no knowledge or instructions beyond that suit. It does not appear that he exceeded his authority in making it. There is no proof that the plaintiff was not fully informed how it had been made, or that he was not fully satisfied with it, or that he has ever complained of it, or alleged that it was unauthorized or erroneous. The only evidence of it, now presented, is the commencement of this suit, on January 8, 1853. The presumption must be, that he received the money obtained by that settlement without making any objection to it.

When a bond or other contract has been settled and •surrendered as satisfied 'by reason of mistake or fraud, it may be treated as a valid and subsisting instrument.

It does not in this case appear that any mistake was made in that settlement, or that it was procured by any fraud. The only error apparent, as the case is presented, was that through his own negligence, inattention, or ignorance, the plaintiff allowed a settlement to be made, and his bond to be discharged by his attorney, without claiming a full performance of its condition. If tbe amount now claimed could have been recovered of Lothrop, the plaintiff might have allowed a judgment to be recovered against him and himself, and have procured the amount to be collected of him. After he had remained for so long a time apparently satisfied with that settlement, he should not be relieved from its effect, to enable him to recover a further sum from the surety, without more satisfactory proof of excess of authority, or of mistake, or fraud, than he has exhibited.

Plaintiff nonsuit.