Pye v. Perry

• Decision Date: 27 February 1914
• Citation: 104 N.E. 460,217 Mass. 68
• Parties: PYE v. PERRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 68

104 N.E. 460

PYE v. PERRY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1914

COUNSEL

Jos. A Dennison and Francis P. Garland, both of Boston, for plaintiff.

John E Hannigan and Isidor Fox, both of Boston, for defendant.

OPINION

BRALEY J.

By the mutual and defendant stipulations of the contract declared on, the defendant, if the plaintiff would assist him in the prosecution of a pending suit and surrender his rights as a part owner to redeem certain stocks and bonds issued by the Canada, Atlantic & Plant Steamship Company, held by the defendant, and would relinquish any further efforts to hire money to pay the debt for which the stocks and bonds had been given as security, promised and agreed that upon obtaining control of the company he would repay to him the amount with interest which the plaintiff had invested. The answer is a general denial, and obviously the plaintiff, on whom was the burden of proof, must show substantial performance before he could recover damages for a breach by the defendant. Bennett v. Kupfer Bros. Co., 213 Mass. 218, 221, 100 N.E. 332. If the jury believed the testimony of the plaintiff and his witnesses, the further allegations, that the plaintiff had fully performed every part of his agreement but the defendant having acquired possession of the company had refused, although often requested, to carry out his part of the contract, had been proved, and nothing remained except the assessment of damages. Bennett v. Kupfer Bros. Co., 213 Mass. 218, 100 N.E. 332. The presiding judge, in accordance with the defendant's fourth request, correctly and explicitly instructed the jury that 'the plaintiff must prove that he agreement was made as set forth in his declaration, and that he complied with his part of the agreement.'

But inasmuch as counsel for the defendant claimed, in argument that even if there was a contract between the parties, which the defendant as a witness had denied, yet the plaintiff had fallen short in performance and could not recover, read to the jury the following parts of the opinion in Mullaly v. Austin, 97 Mass. 30: 'The breach by one party, by an absolute refusal to fulfil the contract on his part, renders performance by the other party impracticable, and the right to indemnity by an action for damages at once accrues. This is the established rule as applied to contracts founded on concurrent considerations, as where one agrees to do a certain thing, or perform some act, in consideration that another will fulfil some promise or undertaking on his part.' And further said: 'So if you get to that question, as to whether or not Pye carried out his contract, if he had one with the defendant, you may still find the plaintiff entitled to recovery even though he did not do all he agreed to, if the defendant said to him in substance, 'I won't pay you; I disown my agreement with you.' That, however, may not be important.' It is apparent from the colloquy between the court and defendant's counsel at the close of the charge, when the...