McCarren v. McNulty

By the Court. The only case properly before us is that presented by the bill of exceptions certified to us from the court of common pleas. After the case has been entered in this court, the judge of that court has no power to amend the bill of exceptions. But upon a certificate from a justice of the court of common pleas, that there is an error in the bill of exceptions as allowed' by him, this court have the power to, and, in a proper case, will postpone or continue the cause, to allow an alteration or amendment to be made, and a copy thereof certified to this court. This case may be postponed or continued, at the defendants' election, in order to give them an opportunity to be heard [141] before the court of common pleas upon the question of the pro posed amendment. Butler elected to argue the exceptions as amended, being in the form in which they are stated above. Haggerty, for the plaintiff, cited Robinson v. Fiske, 25 Maine, 401; Littlefield v. Winslow, 19 Maine, 394; Sumner v. Williams, 8 Mass. 174; Raymond v. Bearnard, 12 Johns. 274; Pugh v. Leeds, Cowp. 714 ; Moore v. Magrath, Cowp. 9. Merrick, J. The ruling of the presiding judge, to which exception was taken in this case, appears to us to have been perfectly correct. It was predicated upon the assumption that the parties had entered into a special contract with each other, by the terms of which the plaintiff was to be paid the sum of forty dollars for a bookcase of a particular description, if it should be made and finished to the satisfaction of the President of the Young Men’s Society of St. Peter’s Church. It is not denied that this ruling was pertinent and applicable to the questions which arose, the evidence which was produced, and the facts which were shown at the trial. The bookcase was never in fact delivered to the society, nor accepted or approved of ■ by them or their president, or either of the defendants. No / action therefore can be maintained by the plaintiff to recover either its value, or the compensation stipulated to be paid for its construction, without showing that the contract has, on his own part, been fully performed according to its terms and pro- >, visions. This is all that was required by the ruling of the court. The question of fact was distinctly submitted to the jury. It may be that the plaintiff was injudicious or indiscreet in undertaking to labor and furnish materials for a compensation the payment of which was made dependent upon a contingency so hazardous or doubtful as the approval or satisfaction of a party particularly in interest. But of that he was the sole judge. Against the consequences resulting from his own bargain, the law can afford him no relief. Having voluntarily assumed the obligations and the risk of the contract, his legal rights are to be ascertained and determined solely according to its provisions. Exceptions overruled.