217 Mass. 196 | Mass. | 1914
We consider that under our decisions there was a sufficient consideration for the modifying agreement of September 24, 1907, and for the plaintiff’s promise made therein to allow to the defendants the rebate therein mentioned. Some of these decisions are collected in Rowe v. Peabody, 207 Mass. 226, 234, and Tobin v. Kells, 207 Mass. 304, 311.
But by this agreement the defendants’ right to that rebate was made conditional upon the defendants’ payment of the amounts
These words can mean only that the defendants are to have this rebate after settlement by them of what had become due from them for waste shipped under the original agreement. And the only mode of settlement provided for in the original agreement was by payment to be made by sending a check “on the tenth of each month for all waste shipped to us [the defendants] during the previous month.” No change was made in this provision by the modifying agreement of September 24. We cannot avoid the conclusion that the defendants’ right to the rebate was to accrue only after making their monthly payments and only on condition of their doing so. It was not a discount to be allowed upon settlement, as in Commonwealth v. Strauss, 188 Mass. 229, and some other cases relied on by the defendants. It was a final rebate or cash payment to be made by the plaintiff to the defendants only after the termination of the period covered by the original agreement and after full settlement thereunder should have been made by the defendants. Lamb v. Lamb, 11 Pick. 371, 378. Hooper v. Hooper, 9 Cush. 122, 128. Treadwell v. Cordis, 5 Gray, 341, 353. State v. Schwarzschild, 83 Maine, 261, 265. It was not both " a rebate and a cash payment that the plaintiff was to make, but only one allowance, and what was added in the modifying agreement after the word "rebate” was added by way of explaining the meaning in which that word was used. There is abundant authority for the view which we take. Tufts v. Kidder, 8 Pick. 537. Makepeace v. Harvard College, 10 Pick. 298. Colton v. Salomon, 38 Vroom, 73. Nassau v. Guttridge, 41 Vroom, 191. Perin v. Cathcart, 115 Iowa, 553. National Distilling Co. v. Cream City Importing Co. 86 Wis. 352. St. Louis & San Francisco Railway v. Rierson, 38 Kans. 359. Missouri Edison Electric Co. v. Bry, 88 Mo. App. 135. Missouri Edison Electric Co. v.
We find no evidence of waiver or of a binding election by the plaintiff not to stand upon its right. It might have been willing to allow the rebate if the defendants had merely made some delay in payment; but that affords no evidence that it had bound itself to waive the stipulation that had been made in its favor. Lambeth Rope Co. v. Brigham, 170 Mass. 518, 523.
The defendants have argued only the question of their right to the rebate or allowance. Under the terms of the report, judgment must be entered for the plaintiff in the amount of $3,269.67, with interest from July 10, 1908.
So ordered.