119 F. 475 | U.S. Circuit Court for the District of Massachusetts | 1902
The cause of demurrer is stated, as follows :
“The contract declared on herein by plaintiff, a copy of which is annexed to the declaration, which said contract is the basis of plaintiff’s action, is vague, indefinite, incapable of enforcement, and void for uncertainty.”
Under this general demurrer, the question whether the damages specifically claimed are such as are recoverable for breach of the contract declared on cannot be considered. The demurrer goes to the right of the plaintiff to maintain an action upon the contract, and not to the measure of damages for a breach of such contract.
The sole ground presented upon argument to support the contention that the plaintiff has not stated such a cause of action as entitles him’to relief in law is that the written contract contains no express limit as to time, and is therefore terminable by either party. Even were we of the opinion that the written contract showed upon its face that it was terminable at the will of either party, or upon reasonable notice, it would not follow that the agreements therein contained would not be obligatory upon the parties so long as they continued to act under such contract, before revoking or terminating it. It cannot be inferred from the declaration that there has been any revocation or termination of the contract.
Nor is it at all clear that the defendants are right in their contention that the contract itself contains no provision as to its continuance. The written memorandum of agreement, which is made part of the declaration, recites that the defendants are sole owners of a fire ex
It is unnecessary, upon this demurrer, to determine whether the defendants are bound, under the first and ninth clauses of the written contract, to furnish the extinguishers so long as the plaintiff orders 40 or more per month. It is sufficient to say that the declaration sets out an agreement by the defendants to sell the plaintiff, at a fixed price, as many fire extinguishers as he should order, and alleges that the plaintiff has ordered 527, which the defendants refused to sell and deliver. The declaration alleges also, in substance, that the agreement in writing was in force at the time of this refusal to sell and deliver, and also alleges breaches of other provisions of the contract. Upon an examination of the declaration and of Exhibit A, it cannot be said, as a matter of law, that the breaches of contract declared upon- are legal impossibilities.
Demurrer overruled.