McIntire v. Bowden , 61 Me. 153 ( 1871 )

DicKERSON, J.

This case is presented on bill, answers, and proofs. 'The prayer is for a decree' compelling the defendants to make a conveyance of the premises described in the bill according to the terms and conditions of a certain instrument in writing signed by George Bowden in September or October, 1858, and running to the plaintiff.

When that instrument was signed, the signer, George Bowden, and Francis Plaisted were joint owners of the premises, and both of their names appear in the body of the instrument as joint contracting parties. The instrument upon its face appears to be incomplete, wanting the signature of the joint contracting party of the first part.

Bowden and Plaisted set forth in their answer that in September or October, 1858, after consulting the plaintiff as to the terms and conditions on which he might occupy the premises or purchase them, Bowden proposed an agreement in three parts, setting forth these terms and conditions, and signed and left with Plaisted the writing described in the bill, and that neither Bowden nor Plaisted ever delivered it to the plaintiff; nor was it signed by Plaisted or the plaintiff, but that it was wrongfully and fraudulently obtained by him. The plaintiff testifies that the instrument was delivered to him by the son of Francis Plaisted, that it was not what it should have been and not satisfactory to him, but was the best he could do.

In view of the improbability that Bowden would contract to give a deed of the whole of premises that he owned only half of, and of the incomplete execution of the writing in controversy, as well as the testimony touching its inception and procurement by the plaintiff, we are satisfied that the plaintiff can take nothing by it, as a completed contract, either against Bowden severally or jointly with Plaisted.

But if it had been duly executed and delivered, the plaintiff could not make it available to him in this bill, as he failed to perform the condition in respect to the payment of rent, to say nothing of other alleged laches on his part.

It is to be observed that the bill does not set forth a trust in Bowden on account of taking a deed from Marshall, nor does it allege that Bowden obtained that deed by fraud. As it does not pray for relief upon either of these grounds, we are not called upon to determine whether upon proper allegations the bill might be sustained. Bill dismissed without costs or prejudice.

AbRuutoN, C. J.; Walton, BaReows, and Danfqeth, JJ., concurred.