Weed v. Clogston

| Mass. | Nov 15, 1867

Wells, J.

Nothing in the contract can warrant the construction contended for by the plaintiff, that the defendants are bound to settle for the proceeds of each machine separately, and pay over the excess above the cost of that machine, leaving unpaid their work and expenditures upon other machines under the same contract. It is only “ the balance that may be in their hands,” after they are “ reimbursed for the cost of building the said machines as above,” that is to be paid over to Weed. The construction contended for should be adopted only upon language clearly indicating that such was the intent of the parties; whereas the language of this contract seems to us clearly to indicate the contrary.

As the defendants had completed the manufacture of the six machines, and had no interest in the machine that remained unsold, except for the purpose of their reimbursement, the plaintiff may be entitled to treat the contract as executed, and recover any balance in his favor that was in the hands of the defendants at the date of his writ. But he could recover only the balance after the defendants are reimbursed for all their claims under the contract. Allowing them what they are entitled to receive upon the whole contract for the six machines, all of which had accrued before the action was brought, there would be nothing due to the plaintiff, but a considerable balance against him due to the defendants.

The judgment for the defendants must therefore be affirmed, even if the ground on which it was so rendered in the superior court cannot be sustained as strictly correct.