Monroe v. Matthews , 48 Me. 555 ( 1860 )

The opinion of the Court was drawn up by

Eice, J.

The defendant became responsible that one William E. Matthews should perform a certain contract, which he entered into with the plaintiff on the 27th day of March, 18,51. The terms of the contract were, that the said William E. should pay within thirty days the amount of a certain execution with costs, or cancel said execution in some other satisfactory manner, or deliver certain wagons, referred to in the contract. He did neither, but put into the hands of the officer, who held the plaintiff’s execution, referred to, an execution which the defendant (W. R. Matthews) had obtained against the plaintiff, with orders for him to offset the executions. This the officer refused to do. Whether he was justified in that refusal we cannot now determine. If he was not, he will be responsible to William R. Matthews for neglect of duty. The cancellation, referred to, must be construed to be in a way satisfactory to the plaintiff. There is no ambiguity in the contract, and, it being in writing, cannot be varied or controlled by parol testimony.

According to the stipulations in the report, the defendant is to be defaulted for the amount of the plaintiff’s execution, including costs and legal charges, with interest thereon.

Defendant defaulted.

Tenney, 0. J., Appleton, Cutting, May and Kent, JJ., concurred.