The opinion of the Court was drawn up by
Weston C. J.To secure to the plaintiff a conveyance of one half of the steam saw-mill, he had united in building with the defendant, the latter executed a bond to the plaintiff, dated May 11th, 1836. The advances previously and subsequently made by him, were covered by the condition of that bond. If the defendant has failed to perform on his part, the proper remedy for the plaintiff is upon that instrument. It is said this cannot be prosecuted, because the plaintiff has prevented the defendant from entitling himself to such an action, by performance on his part. If the plaintiff has thus prevented the defendant, performance by the latter would be excused, without defeating the appropriate action. So if the plaintiff, without justifiable cause, has vol*368untarily deprived himself of the power of fulfilment, a tender by the defendant may be excused. If therefof e such is the fapt, it is very questionable, whether assumpsit -can be maintained, on account of the advances. The case, so far as this principle is involved, bears a near resemblance to that of Charles & al. v. Dana, 14 Maine R. 383, to which we refer.
The ground upon which it is insisted, that assumpsit for money had and received may lie is, that the defendant had rescinded the special contract, by conveying the property to-which it refers to others. , Admitting that this would change the remedy, which is not conceded", we are not satisfied that such was the fact, at the time of the commencement of the action. The defendarit was then- the owner of one half the property in question, subject to a mortgage to Goddard and Cutter. What the cost of the whole investment amounted to, does not appear. The amount to be paid by the plaintiff, for his half was to be liquidated, as provided for in the condition of the bond, after the works should have been- completed. ' If the plaintiff then paid or secured his half to the defendant, he was to be entitled to a deed. This payment might have enabled the defendant to discharge the mortgage. It does not appear, that the defendant would' not have done ' this before the plaintiff was, entitled to demand a deed,- or that he might not have had it in his power to procure the release of -the mortgagees, when the demand might be made. And this, with a conveyance from himself, would have saved the condition of the bond. Brown v. Gammon, 14 Maine R. 276. To justify the remedy by assumpsit, the least that could be required, would be clear and unequivocal proof, that the defendant had rescinded the contract, when the action was brought. This is so far from being true, that it could not then have been known, that he would not be ready to fulfil it, when the plaintiff was entitled to demand it. Since the a,ctionr the defendant has sold his whole interest to William Emerson, but that fact cannot avail the plaintiff jn the present suit.
Judgment for defendant.