Newton Rubber Works v. Graham

50 N.E. 547, 171 Mass. 352, 1898 Mass. LEXIS 88

Opinion

Morton, J.

The body of the agreement is an engagement on the part of such creditors of the Quincy Cycle Company as shall sign it to transfer their claims to the defendant upon receiving from him notes or cash therefor as specified in the agreement. There is in it no contract on the part of the defendant that he will purchase such claims, and pay therefor in notes or cash as set forth in the agreement. The question then is whether the defendant’s signature to the supplemental line, which reads, “ I authorize the above offer, and agree to carry the same out if secured within the time named,” imports an absolute or a conditional liability on his part, and if the latter, whether the cause of action, if any, has been well pleaded.

It is clear, we think, that the liability is a conditional one. The defendant authorizes and agrees to carry out the stipulations contained in the body of the agreement, “ if secured within the time named ” in it. That is plainly a conditional undertaking, and, according to well settled rules of pleading, the condition should have been set out as a part "of the contract, and performance of it averred, or the want of performance excused. Newcomb v. Brackett, 16 Mass. 161. Whitaker v. Smith, 4 Pick. 83. Stanwood v. Scovel, 4 Pick. 422. Codding v. Mansfield, 7 Gray, 272. Murdock v. Caldwell, 8 Allen, 309. Riley v. Farnsworth, 111 Mass. 152. Palmer v. Sawyer, 114 Mass. 1, 13. Pub. Sts. c. 167, § 2, cl. 10. The allegation- that “ the plaintiff has done and performed all things on its part in said agreement contained to be done and performed, and that it has kept all of the conditions of said agreement,” is not sufficient. The condition should also be set out.

Judgment for the defendant.