Tewksbury v. Hayes , 41 Me. 123 ( 1856 )

Tenney, C. J.

The property of Cornelia E. Blake was invested by her guardian, the plaintiff, in a woolen factory, prior to January 18, 1848. On that day, he admits in his written contract with her, that he held a claim against the brick factory in Oxford, belonging to her, to the amount of $268,11, and interest from April 15, 1847, which amount and interest thereon, he promised therein to pay to her.

On Nov. 8, 1849, by a written agreement made by the defendant, in consideration of a conveyance of an interest of the plaintiff in the woolen brick factory in Oxford, he made himself responsible to Cornelia E. Blake for the amount of interest, which she then had in said mill, and agreed to pay over her part, to wit, the amount proportionally due her, when their joint interest in the mill should be sold.

The case exhibits no connection whatever between the contract of the plaintiff with Cornelia E. Blake and that of the defendant entered into on Nov. 8, 1849 ; and it does not appear, that the defendant had any knowledge of the previous one.

That the plaintiff was made absolutely responsible to Cornelia E. Blake for the sum named in his contract with her of Jan. 18, 1848, there can be no doubt. In the contract with the plaintiff, Mrs. Blake is treated as the owner of an interest in the mill, and the promise, upon a fair construction of the language employed, was to pay her the avails of that interest, upon a sale of the joint interest belonging to her and the defendant.

The plaintiff may have taken the contract of the defendant, for the purpose of substituting it for Ms own, made to his ward. But whatever was his design, both contracts remained as they were, when given; and the plaintiff has paid a judgment recovered against him on Ms contract, after the commencement of this suit.

This action is upon the memorandum of the defendant of Nov. 8, 1849, to recover the portion of the avails of the sale of the mill made by him and others, on Jan. 31, 1850, belonging to Cornelia E. Blake, and we are to suppose from the report of the case, that the writ contains no other count. The contract in suit contains no promise to the plaintiff, and he cannot maintain an action thereon. Plaintiff nonsuit.

Rice, Hathaway, Cutting and Goodenow, J. J., concurred.