118 Mass. 489 | Mass. | 1875
The contract provides that “ if the party of the first part shall withdraw from this contract and cease to do business in Hinsdale, without having shared the benefit of this business at all, then the said Seymour shall pay the said party of the first part the sum of two hundred dollars.” This stipulation implies that the plaintiff might so withdraw at any time, even before entering upon any participation in the business contemplated.
At the trial, the court refused to rule, as requested by the defendant, “that the plaintiff is not entitled to $200, as for his
It would follow from these rulings that the plaintiff would be entitled to recover the $200, if he had so withdrawn, without regard to any consideration for the agreement to pay that sum, except what was furnished in the written contract itself; and it was apparently so ruled at the trial.
Construing the contract in the mode suggested, and as it was apparently construed at the trial, there would be no consideration for the defendant’s agreement to pay $200, so long as the contract remained wholly executory. There would no mutuality, because the plaintiff was under no obligation to proceed or to do anything in its execution; and the contract itself conferred no new rights or advantages upon the defendant, and recites none as having been conferred. If the defendant had in fact gained any advantage from the making of the contract of partnership, by reason of the previous reputation of the plaintiff and his withdrawal from business in that vicinity ; or if it had appeared that the contract was entered into by the defendant in view of such expected advantage; that might have furnished sufficient consid* eration.
The second instruction, given at the request of the plaintiff, being to that effect, was correct. But the first instruction or ruling before referred to authorized and required the jury to return a verdict for the $200, if the plaintiff had so withdrawn, without regard to proof of any consideration except what was to be derived from the written contract itself. This was erroneous, Goward v. Waters, 98 Mass. 596. Exceptions sustained.
