223 Mass. 137 | Mass. | 1916
The plaintiff, her husband and child, and the defendant, her father-in-law, a widower, lived together as a family in this Commonwealth until in consequence of the husband’s habits of intoxication she left her home taking her child, and secured work in another State as an operative in a knitting mill. It was uncontroverted that shortly thereafter she was solicited by the defendant to return and re-establish the home. And while the pecuniary conditions upon which this was to be done were in dispute, the jury upon conflicting evidence would have been warranted in finding that the parties entered into the contract set out in the amended declaration. The words “make a home with her husband for the defendant” mean as construed by the judge at the trial, that the plaintiff should furnish him with shelter and food so long as he remained with the family. It is plain that no obliga
It follows that, the defendant having rendered further performance impossible, the plaintiff, having done all on her part that the contract required, is entitled to damages for the breach. Byrne v. Dorey, 221 Mass. 399, and cases cited.
The measure of recovery remains for determination. The declaration alleges as the consideration, that the defendant agreed to “give the plaintiff one half of a certain mortgage note valued at $2,000 or the equivalent of the same in cash” upon her return with him to their former home. It may be when he made the promise that the defendant did not expect to remarry. But this contingency as well as the possibility that he might die before the full consideration had been actually earned were not guarded against and form no part of the contract. Having complied with the condition, we see no reason why the plaintiff should not recover the amount stipulated. Gardner v. Denison, 217 Mass. 492. Gunther v. Gunther, 181 Mass. 217. White v. Solomon, 164 Mass. 516. Earle v. Angell, 157 Mass. 294. No error is shown in the refusals to rule or in the rulings given.
Exceptions overruled.