Stevens v. Androscoggin Water Power Co.

Appleton,' O. J.

This is an action of assumpsit against the defendants, as acceptors of the following order, drawn on them by James Hibbard.

“Shelburne, Eeb. 25, 1873.

Androscoggin Water Power Co.,

Edward Plummer, Agent.

Please pay to James A. Stevens, for cutting and hauling lumber, the sum of one hundred and thirty-four dollars, and charge the same to my account. James Hibbard.”

In answer to a letter from the plaintiff, the defendants on March 18, 1873, wrote the following letter to him :

*500“Lisbon Ealls, Me., March 18, 1873.

Mb. James A. Stevens,

Deab Sib: Yours of the thirteenth inst., is received. We shall not pay any orders of Mr. Hibbard until we settle with him. If there is anything over, I will keep it back for the purpose.

Yours truly, E. Plummeb, Agent.”

The order of Feb. 25 was retained by the defendants in their possession. On March 25, 1873, the defendants were summoned as trustees of James Hibbard, in a suit in which one Bean was plaintiff, returnable at the September term of the Supreme Judicial Court for the county of Androscoggin, and for the sum of $356.70. On April 28, 1873, the plaintiff’s attorneys were notified that this action would be entered at the September term, and that the trustee would make a full statement as to all orders drawn, and leave the question of liability to the decision of the court. Prior, however, to the September term, Hibbard settled the suit of Bean, and directed the defendants to pay the amount due, without notifying the plaintiff in this suit. At the time of this settlement there were due Hibbard from the defendants, four hundred and four dollars and forty-seven cents, out of which sum they paid Bean three hundred and sixty-nine dollars and fifteen cents, and the balance of thirty-five dollars and thirty two cents they paid Hibbard. This payment was on August 2, 1873.

An acceptance may be absolute or conditional. A conditional acceptance at once becomes absolute upon the performance or happening of the condition.

In the present case the defendants’ promise is to pay if in settlement “there is anything over.” When the acceptance is conditional, the holder may accept or refuse the offer. The plaintiff acceded to the proposition of the defendants' — permitted the order to remain with them, and did not sue out a trustee writ, by which his whole debt would have been secured. There was a settlement and the amount due exceeded the amount of Hibbard’s order. The defendants then became liable, and this liability, conditional in the first instance, accrued long before the trustee suit of Bean. *501The payment to Bean by the defendants was in their own wrong, and cannot defeat the prior right of the plaintiff.

Defendants defaulted. ■

"Walton, Dickerson, Barrows, Yirgin and Peters, JJ., concurred.