Brown v. Clough , 39 Me. 566 ( 1855 )

Rice, J.

— The case presents a single point only, and that is, whether the obligor in the bond was entitled to one year within which to execute his deed, or the obligee was entitled to that time within which to make payment and request a deed. The language in the condition in the bond, bearing upon that point, isas follows: — “That if within one year from this date, upon request of the said William G-. Brown, or his heirs, executors or administrators, and the payment of one hundred dollars, &c., the said Nathaniel Blair, &c., shall make and deliver to the said Brown, &c., a good and valid deed,” &c. This language, standing alone, is not wholly free from ambiguity. The intention of the parties must govern, if not inconsistent with rules of law. Those intentions may be ascertained by reference to the whole instrument, to the situation of the parties, and to their contemporaneous acts in relation to the subject matter.

The transaction was between buyer and seller of land. Was time desired by the seller to enable him to execute his deed of the premises; or by the purchaser to enable him to make the stipulated payment ? The ordinary course of business between parties thus situated would indicate the latter. The acts of the parties also indicate, that they understood that the deed was to be executed upon request, (within the year,) and payment of the price stipulated. An application of the technical rules of construction between grantor and grantee, in cases of doubt, favors the position of the plaintiff.

In view of the whole case, we are of opinion, that the word “upon,” as used in the condition of the bond is equivalent in meaning to the words “at the time of.” This construction would require the obligor to execute his deed within a reasonable time after request made and money paid or tendered, if done within a year. This he has neglected and refused to do, and thereby occasioned a breach of the bond.

According to agreement a default must be entered, the defendant to be heard in damages by the Court.