Stewart v. Loring

87 Mass. 306

Opinion

Dewey, J.

The promise on the part of the defendant to pay the plaintiff the sum of ten dollars has, on the face of the written contract, no other consideration than the receiving of instruction by the defendant at the gymnasium. This instruction was not received, and so far the consideration for the promise has failed. But if we may suppose the real purpose of the writing to have been to insure the plaintiff in advance that his school should be patronized, and that the defendant would be a pupil, then the answer, as it seems to us, might be reasonably made that the party, without any fault of his own, was from subsequent ill health rendered physically incapable of attending the gymnasium as a pupil. The parties must have acted upon the assumption of the continued ability of the promisee to give and the promisor to receive the proposed instruction. z

The judgment was properly rendered for the defendant.