Bigelow v. Bigelow , 95 Me. 17 ( 1901 )

Wiswell, C. J.

This is a real action. The plaintiffs rely upon a mortgage given by Levi R. Bigelow, one of the defendants, and under whom the other defendants claim, to John Harlow Bigelow, dated April 27, 1889, acknowledged and recorded, and duly assigned to the plaintiffs. The defense is that the mortgage was without consideration, that the indebtedness which the mortgage purported to secure, never in fact existed. The title to the property was at one time in John Harlow Bigelow, who conveyed it to the defendant, Levi R. Bigelow, and took back from him the mortgage in question. But the claim of the defendants is that this conveyance was in pursuance of a valid and enforceable contract made between John Harlow and Levi R., wherein the former, for a valuable consideration, had agreed to convey the premises to the latter.

After the first trial, which resulted in a verdict for the defendants, the plaintiffs brought the case to the law court upon a motion for a new trial. In the decision of the case at that time, (93 Me. 439) the court inadvertently failed to apply to a state of facts, which, it was said, the jury might have been authorized in finding, principles of law that are quite elementary. The contention of the defendants at that time, quite fully stated in the former opinion, was briefly this: In June, 1888, while Levi R. was employed in a cotton mill in Waterville, two of his sons, being temporarily in Skowhegan met John Harlow Bigelow, an uncle of their father, and had a conversation with him, during which, the latter, after inquiring about their father’s health and learning that it was rather poor, sent word by the sons to him that if he would leave his employment in the mill and move onto a particular farm in the vicinity of Skowhegan, he, John, would purchase the farm and make a present of it to Levi; that this message was conveyed to the latter, who, before acting upon it sent two of his sons back to Skowhegan to make sure there was no misunderstanding; that after receiving assurance that the promise would be carried out, Levi, in pursuance of this request and relying upon the promise, did leave his employment in the mill and move to the farm. When, some months later, the conveyance was made by John to Levi, the latter at the request of the former went to an office in Skowhegan and executed the noté and mortgage which had been drafted and left there for this purpose. This is the mortgage in question.

In the former opinion, the court said, that, although these facts were stoutly denied by the plaintiffs, and although the subsequent conduct of the parties to the alleged contract was such as to lead to the belief that they did not consider that a contract had been made between them, and that the conversation between John and the sons of Levi amounted merely to a suggestion, and not a request and promise, that a jury might have been authorized in finding these facts as claimed by the defendants. It was then said in the opinion that this would not constitute a contract, even if the facts were as claimed by the defendants, that a consideration for the alleged promise of John was lacking, that there was neither a benefit to the promisor nor a detriment to the promisee.

But the court neglected to go further and say that neither the benefit to the one nor the detriment to the other need be actual; that it would be a detriment to the promisee, in a legal sense, if he, at the request of the promisor and upon the strength of that promise, had performed any act which occasioned him the slightest trouble or inconvenience, and which he was not obliged to perform. That is, if it is true that the defendant, Levi, did, at the request of his uncle, and relying upon the promise of the latter, give up his former home, and his employment in the mill, and move to the farm, then these acts of the defendant, Levi, performed in compliance with the request and in reliance upon the promise, would constitute a valuable consideration for such promise.

This principle is so universally recognized that the citation of authorities in its support is unnecessary. And the failure to allude to this doctrine in the former opinion was because of the fact that the court, although it said that the jury might have been authorized in finding the facts as claimed by the defendants, expressed a contrary belief as to these facts. The failure to apply this doctrine led to a result inconsistent with the statement that the finding of facts by the jury might have been authorized.

If, prior to the conveyance from John to Levi, the latter was the equitable owner of the farm and entitled to a conveyance thereof, so that he could have maintained a bill for specific performance of the alleged contract, then the defendants’ theory that the mortgage was without consideration, is correct. Whether, at that time, he was such an equitable owner, depends upon the determination of these two questions: first, did John promise, for a valuable consideration, to make a conveyance of this farm to Levi? This is a question of fact to be determined by the jury. Next, was the contract, if one was made, in view of the subsequent performance by Levi, one that should be enforced in equity ? If a contract existed, we think that the performance upon the part of Levi of the acts which constituted the consideration for that contract, followed by his going into possession of the property with the knowledge and consent of the person holding the legal title, and making expenditures thereon, although not sufficient to entitle him to a conveyance if the promise was merely a voluntary one to make a gift, would be sufficient to take the case out of the operation of the statute of frauds, and to authorize a court of equity, in the exercise of its sound discretion, to decree specific performance of the contract to convey. Green v. Jones, 76 Maine, 563; Woodbury v. Gardner, 77 Maine, 68.

At the last trial, the case was submitted upon the printed record of the testimony taken out at the first trial. Thereupon counsel for defendants requested the court to give an instruction to the effect, that, if the jury should find the facts as claimed by the defendants in relation to the acts performed by Levi, at the request and in reliance upon the promise of John, such acts would constitute a legal consideration for the alleged promise of the latter, and that if the minds of the two parties thus met, it would constitute an oral contract for the conveyance of the farm. The presiding justice, following the former opinion of the court in this case, declined to give the requested instruction, and ordered a verdict for the plaintiffs, thus taking from the jury the question of fact involved.

We have already seen that that decision was incorrect in this respect, the rulings at nisi prius were consequently erroneous.

Exceptions sustained.