Amos v. Oakley, 131 Mass. 413

131 Mass. 413 | Mass. | 1881

Deyens, J.

The declaration of the plaintiff alleged that the defendant, who had agreed to furnish him proper support for life, which included suitable clothing, had wholly failed and still failed so to do; so that, on June 9, 1879, the plaintiff had been compelled to seek food, clothing and shelter elsewhere. While there was an allegation that the defendant continued to fail to provide proper support, nothing appears by the bill of exceptions to show that any breach of contract was relied on in evidence except the failure thus to provide for the plaintiff according to the contract on or before said June 9. On that day, the plaintiff had left the defendant’s house, had never returned, and had not responded to the subsequent offer of the defendant to come for him and bring him home. There was evidence tending to show that, at the time the plaintiff left the defendant’s house, his clothing was not such as he was entitled to under the contract. As it must appear by the defendant’s exceptions that the evidence which he offered was improperly excluded, it is necessary to consider only whether it was admissible upon the single issue which appears by them to have been tried.

On September 9, 1879, the day before the writ in this action was sued out, a lease was made by the defendant of the premises conveyed by the plaintiff to him, in consideration of which he had made the contract declared on, under which the lessee had agreed that, if the plaintiff should return to the premises and desire it, he would furnish the plaintiff with suitable clothing, board and lodging. Of this lease the plaintiff had no notice until after action brought, and it was rightfully excluded when offered in evidence by the defendant. The question was whether, on or before June 9, the defendant had so broken his contract that the plaintiff was himself justified in abandoning it and in seeking support elsewhere. Upon such an issue, it was not relevant to prove an agreement made long after the breach relied on, and of which the plaintiff had no notice, between the defendant and a third person, by which the latter undertook to furnish support to the plaintiff. Such a transaction could in no manner affect a right of action already accrued, or deprive the plaintiff of any existing claim for damages.

Whether the ruling given upon the subject of the damages was correct need not be discussed. No objection was made to it, unless the defendant was entitled to that which he desired, which was substantially that the plaintiff was entitled to recover only for the failure to support to the time when action was brought. This request treated the contract as one of which there could be no final breach, and the remedy for its violation as consisting only in successive suits for damages as from time to time its violation might continue. But if this- was a continuing contract for the plaintiff’s life, it was also entire in its character, and a complete breach would justify the plaintiff in treating it as absolutely at an end, and in seeking a remedy which should give him an equivalent in damages for its value. Such value could readily be ascertained. The plaintiff was not obliged to renew a contract once broken by the default of the defendant, either by making subsequent demands, or accepting support afterwards tendered. Exceptions overruled.