Hilton v. Southwick , 17 Me. 303 ( 1840 )

The opinion of the Court was drawn up by

Sherley J.

The contract recites, that the plaintiff was about' transferring the note, and the defendant promises to account to him for what he should get discounted in the payment of it. That it Operated to induce the plaintiff to sell, and that it was so designed,' there can be little doubt. The plaintiff on. the following day sold' the nóte at a large discount.

A prómise to pay upon the performance of an act, by which' the party is injured, becomes binding, when the act is performed/ Train v. Gold, 5 Pick. 385 ; Kempton v. Coffin, 12 Pick. 129. The contract in substance provides, that if the defendant was not obliged to pay all that should be due, he would pay sufficient to the plaintiff to make up the whole amount. It does not provide, that the discount should be obtained in any particular mode W make it obligatory on the defendant to pay it to the plaintiff. By" signing the assignment the plaintiff did not destroy the negotiable character of the note, which might afterward be legally transferred. The effect might be to make his signature to the assignment ineffectual unless, adopted by the indorsee, but not to destroy a contract made in contemplation of a sale.

There is a motion for a new trial arising out of the alleged improper conduct of the plaintiff in his attentions to one of the jurors. In the case of Cottle v. Cottle, 6 Greenl. 140, where the party conveyed a juror to the house of his friend and entertained him, it appears to have been done not as an act of ordinary and neighborly kindness, while in this case, although under the circumstances indiscreet and incorrect, it does appear to have been of that character. In that case, it appears from the remarks of the Judge in delivering the opinion, that the party had conversed with the juror respecting the suit, for it is said, “he sought his society, and attempted to impress his mind with the justice of his claim.” And that the party sought the juror in an unusual manner. These considerations were justly regarded as sufficient to require the verdict to be set aside. In this case the juror must be understood in his testimony as denying that he had any conversation with the plaintiff about the action, and as stating that the occasion of his riding home with the plaintiff was, that he had ordered his horse to be sent to him, that it had not arrived when the jury was discharged for that day, that he inquired for' a passage and was- informed by the plaintiff’s son, that his father could carry him home-. Although this took place while the action was on trial, the plaintiff dees not appear to have sought for the juror, or to have conversed with him respecting it; and he did not go out of his own way to accommodate the juror. And yet the exercise of these acts of kindness under sueh circumstances are suited to produce suspicion that the juror had been influenced by improper motives and the Court must feel a want of perfect confidence as much to be deplored by it, as by the losing party. It has however come to the conclusion, not without doubt and hesitation, that the verdict may be regarded as found by a jury free from improper influences. But if such practices are continued, either directly or through the intervention of relatives or agents, they will afford just reason for the conclusion, that there may be an undiscovered influence which must require verdicts found under such circumstances to be set aside. If there appeared the least attempt on the part of the plaintiff to seek and influence the juror, the verdict would be set aside. But without any such attempt, there does not appear to be sufficient cause for it.

Judgment on the verdict.