Gilman v. Veazie , 24 Me. 202 ( 1844 )

The opinion of the Court was by

Shepley J.

This suit was commenced by Benjamin P. Gilman and John H. Gilman to recover the sum of one hundred dollars subscribed by the defendant to aid in the construction of a winter road from Sebee to the Chesuncook lake. The writ contains four counts. The first is indebitatis assumpsit, for money laid out and expended; the second for labor and service performed; the third is upon the subscription paper marked A ; and the fourth upon the subscription paper marked B. The latter is an informal conditional contract with John H. Gilman only, to pay one hundred dollars, provided he “ will agree to make a passable winter road the present season, to cut and bridge,” from Sebee to Chesuncook lake as laid out by R. Gilmore and others. This would not authorize the two plaintiffs to maintain this suit. They offered to prove a parol agreement made at the same time, that the sum subscribed by the defendant should be paid to them, that they should make the necessary arrangements and contracts, superintend the expenditure of the money, and be responsible, that the road was made. Such testimony could only prove an agreement made at the same time, and different from the written agreement, or subscription, signed by the defendant; and it could not have been legally admitted. The contract or subscription paper, marked A, was not subscribed by the defendant, or referred to in the one, which he did subscribe; and it differs from that one by being a contract with B. P. Gilman & Co. instead of with one member of the firm; by providing that the amount subscribed might be paid in labor or produce; and by the 'omission of any stipulation, that the road should be made passable that season. No presumption could arise, that one so differing from it constituted a part of the contract subscribed by the defendant, because the papers, on which they were written, were found two or three weeks afterward connected together by wafers. The paper, marked A, was not therefore by any connexion with the defendant admissible as testimony against him. This action in the name of two persons, cannot be sustained upon the contract or 'paper signed by the defendant, or by the aid of the other contract made with the firm, which he did not subscribe. Nor can it be sustained by the proof relating to the counts for money paid and labor performed. Although the defendant may have derived benefit from the use of the road, there is no legal testimony to prove, that the plaintiffs expended money, or performed labor, at his request. Nor is there any testimony offered, which would prove, that they have in fact expended their own money, or performed labor upon that road. The contract marked C, between them and Cilley and Nelson, did not oblige them to pay any money or perform any labor. They thereby only agree, that Cilley and Nelson “ shall have the entire benefit derived or to be derived from said subscriptions.” The expenditure of money or performance of labor by Cilley and Nelson under that contract, cannot sustain the counts for money expended and labor performed by the plaintiffs.

Exceptions overruled.