Lamson & Goodnow Manufacturing Co. v. Russell, 112 Mass. 387

Lamson & Goodnow Manufacturing Co. v. Russell

112 Mass. 387 | Mass. | 1873

Mobton, J.

The contract declared on purports to be a contract between the plaintiffs and the defendant. Throughout the body of the instrument, the plaintiffs are described as the contracting party of the first part. It was accepted and acted upon by both parties as the contract of the plaintiffs. Though the agents of the plaintiffs, who executed it, did not attach to their signature the word “ agents,” or other word indicating that they signed it in a representative capacity, yet the plaintiffs are bound by it, and may maintain a suit upon it, as their contract. The ruling of the Superior Court to this effect was correct.

The ground taken by the defendant, that there was a variance between the allegations and the proofs, cannot be sustained. His argument is, that by the letter of January 26, 1870, a new contract was substituted in the place of the original written contract. But such was not the effect of the letter. The original contract provided that the plaintiffs should use reasonable diligence to *394restrain unlicensed parties from the manufacture and sale of cutlery containing the patentee’s improvement, and that no payment should be due from the defendant until the patent should have been declared valid by the decision of a court of competent jurisdiction. The only effect of the letter is to waive the last named condition. It does not annex any new condition to the existing contract. It waives one condition and notifies the plaintiffs that the defendant will insist upon the performance of the other. The plaintiffs properly declared upon the written contract, alleging a waiver instead of the performance of this condition.

The only other question is as to the ruling of the court that, under the pleadings, “ damages sustained by the defendant by breach of any provision of the contract to be performed by the plaintiffs could not be applied in reduction of any damages which the plaintiffs were entitled to recover in this action.” This ruling was correct. So far as the stipulations of the contract to be performed by the plaintiffs were conditions precedent to their right of recovery, the verdict of the jury establishes that they were performed by the plaintiffs, or that the defendant waived their performance. If the defendant intended to rely upon the fact that the plaintiffs had broken any other of the stipulations, to his damage, he should have alleged it in his answer. It is a substantive fact in avoidance of the action, which, not being set forth in clear and precise terms, is not open under his answer.

Exceptions overruled.