Adams v. Hill , 16 Me. 215 ( 1839 )

The opinion of the Court was afterwards prepared by

Weston C. J.•

.The counsel for the defendants having waived all objection to the testimony, the facts of the case are settled by the report of the referees. By that it appears, that the instrument of June 24, 1836, was never an executed contract. It was manifestly left incomplete. For although it was signed by the plaintiff, it had the signature of only one of the building committee of Saint Johns Church, of whom there were five. The corporation therefore were not bound, even if the building committee had authority to enter into the contract. Kupfer & al. v. The South Parish in Augusta, 12 Mass. R. 185.

It would be unreasonable to hold the plaintiff bound by an instrument, executed only by one of the contracting parties, when it is apparent, that the plaintiff understood that both were to be bound. The consideration for the promise on the part of the plaintiff, was the promise of the corporation, by their committee. That not having been effectually made, there was a failure of consideration.

While the business was thus circumstanced, the plaintiff as well he might, objected to going on with the work, unless he could be secure of his pay, according to the contract. Thereupon the defendants, on the first day of July, one week after the date of the first instrument, agree under their hands, to secure to the plaintiff, the amount of his contract, for plastering the inside of the church, $650, being one half, to be paid “ when he shall have completed tlie work,” and $650, being the balance, in sixty days thereafter. The terms used, are a direct promise to pay, at the times stipulated ; for such is the effect of an agreement to secure payments, which no other party was bound to make. It was not then a collateral, but an original promise. Tho consideration expressed in tho promise, was the completion of the work then going on. And although a portion of it had been done, tho labor subsequently performed was a sufficient legal consideration to sustain tho promise, which is precise in its terms, both as to the amount to be paid, and the times of payment.

The promise of the defendants refers to the paper of June 24th, for the details of what the plaintiff was to do ; the effect of which is the same, as if they had been inserted in the paper of July. If that reference embraces also the time, within which the plaintiff was to complete the work, as perhaps it ought upon a just construction, it is objected that there was a failure in point of time, and some slight defect in a part of the work. But it was all done under the eye of one of the defendants, and was accepted by those, for and with whom the defendants acted. And we are of opinion, that under the submission, the referees were well warranted in awarding to the plaintiff, whatever was in their judgment justly due to him for his entire services. As to any irregularity in the action, it was waived by the submission. Forseth v. Shaw, 10 Mass. R. 253. The report is accepted; and judgment is to be rendered thereon, for the larger sum awarded, and costs.