Larrabee v. Woodman , 40 Me. 120 ( 1855 )

Appleton, J.

The defendant, having an interest in a township of land in the county of Aroostook, on the 25th May, 1850, quitclaimed the same to the plaintiff, who then, in consideration therefor, gave him back a bond conditioned, among other things, to save him “ harmless of any bonds, agreements or obligations for the conveyance of small lots in said township” * * “ being mostly or wholly settlers’ lots, to the following individuals, to wit, Josiah Gelerson, one lot of one hundred and fifty acres, according to the bond given,” and to other individuals enumerated in the plaintiff’s bond to the defendant; “ said Charles to be held harmless of his obligation to settlers by me; and I am to receive, and be entitled to receive, all sums due, or that may be due, from said settlers, as consideration money of said lots, there being due about one hundred and thirty dollars from Gelerson,” &c. Upon settlement with Gelerson, it appeared that the sum due from him was about thirty dollars, which he paid, and received from the plaintiff a deed in conformity with the terms of his bond from the defendant. This suit is brought to recover the difference between the sum paid and one hundred and thirty dollars, “about” which amount, it would appear from the plaintiff’s bond, he expected to have been due.

The parol evidence introduced in the defence tended to show that the transaction was this, “ the plaintiff was to step into Woodman’s place, and Woodman was to step out, that was the whole bargain.” The amounts supposed to be due were stated as matters of estimate, but not of certainty. In such a bargain, there would necessarily be very considerable uncertainty as to the result.

The plaintiff claims to recover upon a special contract, according to which, as he alleges, the defendant “promised that said Larrabee should have and collect the sum due from said Gelerson, to entitle him to a conveyance under said bond, and that said sum should be about one hundred and thirty dollars.” The parol evidence of the plaintiff fails to show that there was any such contract, nor is its existence a legal inference from the terms of the bond given by the plaintiff to the defendant. No engagement was made by the defendant in that bond. * The engagement was rather made with and to him.

When the money indorsed on the bond was received by the defendant, it was as much his money as any money in his hands, and belonging to him, nothing has since occurred by which the defendant has agreed to transfer that amount to the plaintiff.

The use of the word “ about” shows that the amount due was uncertain. By the bond the plaintiff was to have “ all sums due, or that may be due.” What those sums might be, both parties chose to leave indefinite. Had the parties agreed upon a definite sum, or made their negotiation upon the basis of some fixed amount being due, nothing was easier than for the plaintiff to have required a guaranty for such amount, and then his rights would have been definitively settled. No sum was agreed upon, and the inference from the whole transaction is, that none was intended to be fixed or determined as and for the sum due from the settlers.

Plaintiff nonsuit.