Kenerson v. Colgar

41 N.E. 122, 164 Mass. 166

• Court: Massachusetts Supreme Judicial Court
• Decided: June 24, 1895
• Status: Published

Opinion

Holmes, J.

According to the agreed statement of facts, the consideration of the defendant’s promise to “ make papers giving the property to Mary, the wife of the plaintiff, after her death,” was that the plaintiff “ would move from his residence in East Cambridge to her [defendant’s] house in Allston, and take care of her.” Moving his buildings was no part of the consideration, and therefore, conversely, the defendant’s promise was not the consideration or conventional inducement for moving the buildings, and a repudiation of the express promise does not let in a recovery for the buildings on a quantum valebat, as in Parker v. Tainter, 128 Mass. 185. Moving the buildings was either a gratuitous act, or at most a means by which the plaintiff enabled himself to do his stipulated part. It was not within the defendant’s request. Bacon v. Parker, 137 Mass. 309, 311.

As the facts stand, judgment must be for the defendant; but as it seems very possible that the agreed statement does not present the plaintiff’s case adequately upon this point, we think it best to mention that our judgment is without prejudice to a motion to discharge the facts in the Superior Court if the counsel for the plaintiff thinks he can show just cause. Platt v. Justices of the Superior Court, 124 Mass. 353, 355.

Judgment for the defendant.