Rice v. Brown , 81 Me. 56 ( 1888 )

Peters, C. J.

The court had jurisdiction of the cause. Any non-resident of the state may sue any other non-resident in any county where the defendant is personally served with process. Alley v. Caspari, 80 Maine, 234, and cases there cited.

The instrument is clearly a lease, — not merely an agreement for a lease. The parties evidently intended it as such, and there is no evidence to prevent it having that effect. The premises were in existence when the papers were made, and were fully completed when the defendant visited them to take possession. Sweetser v. McKenney, 65 Maine, 225.

The defendant contends that, if it were a lease, he was not bound thereby, (never having actually occupied the leased premises) because there was not a mutuality of contract, the defendant sealing his contract, and it not appearing that.the agent who sealed the instrument for the plaintiff had any authority under seal to do so. This point does not appear in the exceptions, nor is there any indication in the report that it was taken during the trial. But the point avails nothing, if we consider it. The defendant sealed the contract, and the plaintiff, whether he sealed the contract or not, signed it, and each side became bound thereby. It is the same as if the contract had been in two instruments, one containing covenants or promises under seal, and the other containing promises unsealed, each being a sufficient consideration for the other. Each would be valid.

The greater contest at the trial was whether the plaintiff had waived a performance by the defendant or not. The defendant examined the leased premises, and, on account of some dissatisfaction concerning them, refused to enter into occupation. After some interviews between the parties, during which some unpleasant feeling was engendered, • the defendant wrote the plaintiff this letter: “Having waited a reasonable time for you to make up your mind, I have now decided not to submit the questions between ,us to arbitration; and have also decided not to accept the cottage under any circumstances whatever, nor will I acknowledge any liability in the matter.” On the same day the plaintiff wrote in reply: “I have your note of to-day. I consider that you have done me a gross wrong, by violating your written pledge, given me six weeks ago, on a frivolous pretext. The satisfaction I have is that our acquaintance begins. and ends on the same day, and that we can never by any possibility have such disagreeable tenants as you are.”

It was contended at the trial that the two communications constituted an abandonment by one and an acceptance of the abandonment by the other; in other words a waiver of the contract of lease. The judge did not interpret the papers, but left the meaning of them, in connection with other facts, to be ascertained by the jury. Although it is a question of some doubt, a close question, we think on the whole, it would be holding too rigidly against the plaintiff to determine that he waived a performance of the contract, by his letter of reply. The letter rather expresses disappointment, in a sarcastic way, and rebukes the defendant for his conduct. The plaintiff was justified in using the expression that their acquaintance was closed, without waiving any right, because the defendant had peremptorily refused to occupy the cottage, and the plaintiff might afterwards very well understand that tbe defendant was not occupying it, not because released from the lease, but because he had expressly avowed before the plaintiff’s letter was written that he never would occupy it. Had the plaintiff’s letter been written before the defendant wrote his, and the same statement in substance been made in it, the argument for the defendant’s interpretation would be stronger. Evidently, the defendant failed to accept the premises, not on account of waiver, but because he had committed himself to a refusal to do so before any waiver could have taken place.

The letters not being conclusive in themselves on the question, they were properly dealt with as belonging to a series of facts to be submitted to the jury. It was the judge’s duty to instruct the jury what meaning the papers were susceptible of, if any meaning could be sufficiently comprehended from them, and the jury were to decide on all the evidence whether such or what meaning attached. The effect to be given to written when combined with oral evidence, and the general rules governing the mixed evidence, is fully explained in State v. Patterson, 68 Maine, 473. The case does not show that the proper rule in this respect was not observed.

No other points have been argued by the counsel for the defendant, although some other minor questions were reserved. The verdict was not an erroneous one on the evidence.

Motion and exceptions overruled.

Walton, Danforth, Virgin, Emery and Haskell, JJ., concurred.