Miller v. Whittier , 32 Me. 203 ( 1850 )

Shepley, C. J.,

orally.—Whittier entered into a written contract. This bill is brought by an assignee who seeks a performance. The contract required, that Whittier should convey certain lands to Wendell’s wife or her appointee. Whittier was also to transfer to Wendell & Co. all bonds and securities which he had received on certain sales. He was to manage the estates for a year, making sales and paying debts, and was then to transfer to Wendell all the remaining personal property.

There were many stipulations, - which Wendell on his part was to perform.

The bill substantially alleges the performance of them all, except that which required Wendell to procure and lodge in the hands of Smith, to be delivered by Smith to Whittier, certain notes outstanding against Whittier amounting to $10,500, and interest.

As to that stipulation, the bill alleges, that the plaintiff had obtained said notes, and is ready, to deliver them to Whittier, whenever Whittier shall have performed his part of the contract.

Whittier has never made the conveyances and transfers, on his part to be done.

Note.—Wells, J. took no part in this decision. At the time of the argument, he was engaged in court at Piscataquis county.

The bill sets forth, that the interest both of Wendell and of Mrs. Wendell has become vested in the plaintiff, who was, by his stipulation to perform all that Wendell was to perform.

The bill also alleges, that Whittier for the purpose of avoiding the trust, conveyed to the other defendant, Jones, who is his son-in-law, 4500 acres of the land and other portions of the trust estate ; and that Jones, in receiving said land; and other of the trust estates, had full knowledge of the agreements and trusts, into which Whittier had entered with Wendell & Co.

A general demurrer to the bill has been filed by each of the defendants. One objection to the bill is, that the personal property was to be conveyed to Mr. Wendell and therefore Wendell ought to join as plaintiff in the bill.

But all that Wendell had, and all that Mrs, Wendell had, went to the plaintiff, as is alleged in the bill and admitted by the demurrer. The defendant’s chief objection is, that the plaintiff 'permits one of the specified conditions of the bill to remain unperformed on his part. He was to take up and deposit with Smith the $10,500 notes, outstanding against Whittier, and has not done so. It appears, however, that the plaintiff took up the notes, and holds them ready to be delivered to Whittier, when Whittier should fulfil his part of the contract. Still that objection would be fatal, except, that the bill alleges another fact, which is, that Whittier, for the purpose of avoiding the trust, conveyed to his son-in-law, Jones, 4500 acres of the land, and thereby incapacitated himself to perform the contract on his part. By that proceeding, he exonerated the plaintiff from delivering up the notes.

The bill further alleges, that Jones, in receiving the conveyance from Whittier, not only of the 4500 acres of land, but of-other of the trust property, had full knowledge of the agreements and trusts between Wendell and Whittier. Upon such a state of facts, both demurrers must be overruled.