Otis v. Ford , 54 Me. 104 ( 1866 )

Dickerson, J.

Exceptions to the ruling of the presiding Judge, charging the trustee. ■ Both cases depend upon substantially the same facts. The disclosure of the trustee, being uncontradicted, must be taken as true. The trustee contracted with the principal defendant to do a job of work for him at a stipulated price, to be paid upon the completion of the work. The trustee process was served upon the trustee while the principal defendant was in the act of performing the contract, and before he had completed it. Thereupon he abandoned the work, and refused to complete it. Subsequently to this the trustee finished the work himself.

By the terms of the contract the price was payable upon the completion of the work. There was, therefore, nothing due from the trustee to the principal defendant, when service of the trustee process was made upon him; non constat that there ever would be. Ford could not maintain an action against Nash, either on the express contract, because he had not performed his part of it, or upon a quantum meruit, since, at the time of the service of the trustee process, there had been no abandonment of the contract by the principal defendant, and no acceptance of the work by the trustee. Exceptions sustained.

Trustee discharged.

AupletoN, C. J., CuttiNG, Kent, Walton and Tapley, JJ., concurred.