Carle v. Bearce , 33 Me. 337 ( 1851 )

Tennev, J.

— This action is upon a written agreement signed by the defendant. It does not appear, that he had any other interest in the transaction therein referred to, than to pay a sum of money deposited with him by R. D. Hill, “when said Hill shall have satisfied himself, that the fourth part of the schooner Bahama, which said Hill has this day purchased of said Carle, is free and clear from all incumbrances.” He undertook no other - duty, than to make payment of the money in such an event; he was under no obligation to ascertain, whether there was an incumbrance or not, or if any claim was set up, to the part of the vessel, which Hill had agreed to take, to determine whether the same was valid in law, or otherwise. It appears, that he was desirous, that the plaintiff should take back the vessel, and that the papers should be exchanged, and thereby free him from all trouble. But this the plaintiff declined to do, insisting that he should hold the defendant responsible. The liability was never admitted by the defendant to be fixed, and this negotiation was ineffectual. An attachment was made upon the plaintiff’s supposed interest in the vessel, but whether that superseded the claim of Hill or not, the defendant had not undertaken to decide. There was no evidence introduced in the case, tending to show that the defendant had been informed by Hill or by others, that Hill was satisfied, that the vessel was free and dear from all incumbrances. The event, which was to entitle the plaintiff to the money deposited, not having taken place, the defendant is not liable under the written memorandum.

There is no evidence showing that the right to have the condition fulfilled was waived by the defendant, as is contended in behalf of the plaintiff. The defendant told the plaintiff, when he called for the money in company with Lunt, “ call on me on Thursday next, and if I find there is no claim on the vessel, I will pay you then.” Whether the attachment had then been made does not distinctly appear, and it is unimportant. The plaintiff did not call on Thursday ; and there is no evidence, that the defendant bad found that there was no claim upon the vessel, and this cannot be considered a waiver.

But it is contended, that the evidence offered and not received, was admissible, and was sufficient to authorize the jury to have returned a verdict for the plaintiff. In deciding this question, the evidence is to be supposed to exist precisely as it was represented to be, nothing can be added to it or taken from it. The evidence tendered was, “ the admissions of R. D. Hill, that he was satisfied, the vessel was free and clear from all incumbrances.” The time when the admissions were made was not stated in the offer. If made after the suit was commenced, on no principle could they affect the defendant. But on the hypothesis that they were made before the action, could they legitimately affect him ? He might have been liable to one party or the other under his agreement. Payment to the plaintiff before the condition had happened, would expose the defendant to a claim from Hill, if there was an incumbrance upon the vessel. And a refusal afterwards, would render him liable to the other party. He could not be bound by a state of facts, which he did not know, and which by ordinary attention, he could not know. Hill might say many times, and to various persons, that he was satisfied, that no incumbrance existed upon the property, and still that admission be entirely unknown to the defendant. Such a fact alone could not make the defendant’s liability absolute. The admission offered was unaccompanied by the further offer, that the fact was known to the defendant, or that he might have known by ordinary attention to his duty. Exceptions overruled.

Nonsuit confirmed.