Wyer v. Merrill , 7 Me. 342 ( 1831 )

Mellen C. J.

delivered the opinion of the Court at the ensuing May term in Kennebec.

The trustee process in this case was served August 1, 1829. S. C. Merrill had by their contract with the corporation agreed to complete the work therein described by the same 1st day of August; but they did not so complete it; and on the 3d of the same month the contract on their part was duly declared abandoned, pursuant to a provision in the contract. By the disclosure it appears that the whole amount of work done by S. & C. Merrill on the locks, to the first of August, 1829, together with materials ready for further use was _____ $7471,00 Work on the aqueduct, - - 320,00 Do. on culvert and bridge, _ - - - 470,00 8261,00

By the terms of the contract one quarter part of the above sum of $7471 was not then payable, 1867,75 6393.25

There had been paid to them before said day, 6588,00

So that they had been paid in advance, $194,75

But still, at the time the writ was served, the corporation had received the benefit of the labor and materials, to the amount of the above sum of $1867,75 ; though the said S. & C. Merrill were not then entitled to demand that sum in payment, and though they had failed in the completion of their contract, which, on the third of August, was declared abandoned as before mentioned. In this state of things, at a meeting of the directors of the canal, on the morning of the first of August, and before the service of the writ, there was voted to be paid to S. & C. Merrill the sum of $700, on account of work on locks. S. & C. Merrill on the same day, but after the process was served, drew their order on the treasurer of the corporation for the $700, which was immediately accepted conditionally — that is, if any thing should be due. The corporation discovered a readiness.to pay the money voted, to the person or persons legally entitled to demand and receive it; and by consent of the plaintiffs, did immediately pay $250, part of the $700, to another person, on the order of the Messrs. Merrill; and the treasurer states that he should then have paid the whole, had not the trustee process prevented. It is true that S. & C. Merrill did not complete their contract; and its non-completion must have been officially known to the directors. They must have known that in an equitable point of view S. & C. Merrill were entitled to payment for the labor and materials on and for the locks; one quarter part of which had not been paid for on the first of ‘August — stated by the treasurer to be $1867,75; and after deducting the $194,75 paid in advance, it leaves an equitable balance of $1673 as due to the Messrs. Merrill ; though not then payable by the terms of the contract; which states that “ advances are to be made monthly to the amount of three fourths of the engineer’s estimates of the work doneand the before mentioned sum of $700, was his estimate to the first of August on account of lock-pits, banks and walls. The question is now pre-presented, why was not the vote of the directors, passed on the first of August, and before .the service of the trustee process, of the $700 to be paid to S. & C. Merrill, a contract instantly binding on the corporation ? Why was there not a meritorious and valuable and legal consideration for such contract ? Why wai not this vote a waiver of all objections to payment, on account of the non-com-pliancc of S. & C. Merrill with the terms of their contract ?

The corporation could make this contract only by a vote, and so they did make it. Suppose an individual had made the contract with S. & C. Merrill, and such individual knowing that they had not complied with the terms of it, had given them his due bill for the $700; surely this would have been a waiver. But on the question of consideration there is another fact of importance to be regarded. The vote of the $700 to be paid the Messrs. Merrill was “ on account of work on locks.” Here is a valuable consideration expressly stated. We may reasonably consider that this vote was passed, on their request; indeed no other presumption is admissible ; and when it was passed, it instantly became a complete contract. Besides, it is a principle of law that assent is to be presumed, where it operates in favor of the person assenting.

On the whole we are all of opinion that ori the facts disclosed, the corporation must be adjudged the trustee of S. & C. Merrill; and this conclusion is strengthened and confirmed by the fact stated in the additional disclosure, November term, 1830 ; namely, that on a final settlement of accounts between the corporation and them on the 24th of June 1830, they were allowed, as equitably due, the sum of $1772,69.

Corporation adjudged Trustee.