132 Mass. 123 | Mass. | 1882
The agreement between the parties contained the following clause, viz.: “ In case from any cause I [Clegg] am unable to carry out the provisions of this agreement, I agree to return at once to said H. R. Stevens either his acceptances or the full amount of the same ($10,200) in money, said money to be held by him until the return of his acceptances.”
The defendant contends that the clause bound Clegg to return all the acceptances (or the full amount of the same in money) in case of inability or failure on his part during the performance or at the expiration of the contract to carry out all its provisions. He further contends that the fact that the number of papers in which Clegg could and did insert the advertisement was less than that honestly represented by him, and the further fact that he did not furnish to the defendant the number of papers agreed to be furnished, (for which deficiency the auditor has allowed compensation by way of recoupment,) conclusively show that the contingency contemplated by the contract has happened. He therefore argues that, as it is agreed that the same defences are open to the acceptance in the hands of the plaintiff that would be so if it were in the hands of Clegg, there can be no recovery in the present action, as it would be to permit the plaintiff to recover upon an acceptance which it was his duty to deliver up to the defendant.
Clegg was an advertising agent. The written contract made by him was one which could only be carried out through a combination of newspapers known as the American Union, which embraced a large number of papers. As the payment