White v. Perley , 15 Me. 470 ( 1839 )

The case was argued at the May Term, 1838, and the opinion of the Court was delivered orally at the same term, and written out afterwards by

Emery J.

The defendant being sued alone on a contract, which was signed by himself and Thomas E. Perley, it is suggested that the contract is not in conformity with the declaration, ought not to be received in evidence, and does not require a plea in abatement.

The contract is, “ Rcn’d from Moses White, Esq. ten pairs of coarse boots, and seventeen pairs of coarse shoes, which I promise to return to him on or before the first day of July next, or pay him seventeen shillings and sixpence per pair for the boots, and seven shillings and sixpence per pair for the shoes, for all the above quantity that I sell.

“ Woodstock, 11th February, 1834.”

Signed “ Charles Perley,

“ Thomas E. Perley.”

But if we entertained the opinion that this was a joint contract, we should also consider that the only way in which advantage could be taken of the circumstance,- would be by plea in abatement.

It is further contended, that the contract was made in a foreign country, to be construed by laws of the place where made, to be dealt with as a contract between factor and principal, and that a demand should first be made upon the defendant at his house in Woodstock, before an action can be sustained.

In our judgment, however, as the remedy is sought here, and we do not find from the contract any decisive evidence that the contract was necessarily to be performed in a foreign country, we must construe the contract according to our own laws.

The time at which the property was to be returned is stated to be the first of July then next; and as no place was appointed for this duty, according to the spirit of the decision of Bixby v. Whitney, 5 Greenl. 192, it became the duty of the defendant to seek the plaintiff. No demand was requisite on his part. We make no more rigid construction against the defendant, than has been in that case applied against our own citizens when the creditor lives out of the United States. That circumstance does not absolve the debtor from ascertaining of the creditor where the goods shall be delivered.

Upon the failure to deliver the property, the parties agreed upon the price which should be paid. The amount became a debt. It must be concluded that the defendant had sold the whole, as he returned none by the time stipulated.- We cannot make a contract for the parties. If there were qualifications and conditions, which would have been convenient, or agreeable to the defendant, they should have been inserted in the contract. We find nothing but an absolute engagement upon valuable consideration either to return the property, or pay for it. We are of opinion that the action is well sustained. According to the agreement of the parties, the defendant must be defaulted.