Lucas v. Nichols

71 Mass. 309

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1855
• Status: Published

Opinion

Bigelow, J.

The motion to dismiss this action was rightly overruled. Although both plaintiff and defendant lived in the county of Middlesex, the writ was properly made returnable in the county of Norfolk under Rev. Sts. c. 109, § 7; c. 90, § 16; c. 2, § 6, cl. 13. Lewis v. Denney, 4 Cush. 588. The corporation, being quasi local, could be properly summoned as trustees only in the county óf Norfolk, where they had their place of business and held their meetings. The writ, being rightly made returnable in the county of Norfolk, could well be maintained and prosecuted in that county, after the discharge of the trustees, against the principal defendant, under Rev. Sts. c. 109, § 10, because the service of the writ on him would have been sufficient, if the action had been commenced by a common writ. Belknap v. Gibbens, 13 Met. 475. Brown v. Webber, 6 Cush. 569.

The ruling of the court upon the question of delivery of the organs was correct. The rule is, where no place is designated, in a contract of sale, for the delivery of an article to be manufactured by the vendor, it is to be delivered at the shop or manufactory of the vendor, and if he is ready at the time appointed to make delivery there, he has fulfilled his part of the agreement. Middlesex Co. v. Osgood, 4 Gray, 449. Where the vendee is, by the terms of the contract, to designate a place of delivery, the vendor is bound to be ready to make delivery at the place designated. If the vendee omits to designate the place, the vendor is guilty of no breach of contract, if the articles are ready for delivery at the time fixed by the contract.

Exceptions overruled.