204 Mass. 8 | Mass. | 1910
The plaintiff having waived the second count of the declaration, the case was submitted to the jury only upon the first count. This count was upon a special contract; and one of the grounds of the defense was that there was a material variance between the contract therein described and the contract proved.
The count is as follows: “ And the plaintiff and defendant entered into an agreement whereby the plaintiff agreed to sell to the defendant a certain cheese business with the good will thereof and the defendant agreed to pay therefor the sum of $500. That plaintiff well and duly performed his part of the agreement; that defendant neglected and refused and still neglects to perform his part of the said agreement and has paid the plaintiff only $100 of the said sum; wherefore plaintiff says the defendant owes him the sum of $400 and interest thereon from the fifth day of January, 1903.”
The evidence as to what the contract was is not conflicting. The plaintiff testified that “ the business was sold to defendant for $500, to be paid in instalments of fifteen per cent of the gross receipts of the business, payments to be made as soon as the fifteen per cent amounted to $100 — that is, when fifteen per cent of the gross receipts reached $100, defendant was to pay the plaintiff $100, and to continue to pay in the same way until $500 was paid.” The defendant testified that this statement made by the plaintiff as to the purchase price and manner of payment was correct. The plaintiff’s description of the terms of the contract must therefore be taken. The consideration for the defendant’s promise is correctly set forth, — namely, the sale of the business. There is therefore no trouble as to the . setting forth of the consideration, and cases like Stone v. White, 8 Gray, 589, cited by the defendant, are not applicable.
But while the consideration for th'e defendant’s promise is correctly set forth in the count relied upon, there is plainly a material variance between the promise itself as set out in the
The second count having been withdrawn and there being no case for the plaintiff on the first count, the first request that upon the evidence the plaintiff was not entitled to recover also should have been given.
Exceptions sustained.