Contract, What constitutes, Performance and breach. Assignment, For benefit of creditors.
At the trial of an action for an alleged breach by the defendant of a contract by which the plaintiff was to do certain work upon a building as a sub-contractor under the defendant, the alleged breach being a refusal of the defendant to permit the plaintiff to carry out the contract, it appeared that a certain person on or about August 20 had submitted to the defendant a bid for the performance of the work, and, after conversation with the architect, had signed on September 29 an agreement in writing to reduce his bid a certain percentage, and to "put up a bond of 33% of" his contract, that on November 20 such person made an assignment for the benefit of his creditors to the plaintiff who continued the business with the assignor as manager, that on December 1 the plaintiff signed with the defendant the contract declared on, which was dated September 29, in which there was no mention of a bond or of the agreement of the plaintiff's assignor dated September 29, but in which the price fixed upon was the amount of the original bill less the reduction agreed upon on September 29 by the plaintiff's assignor. The plaintiff testified that nothing had been said to him about a bond before the execution of the contract declared on. The plaintiff's assignor testified that shortly after he made the agreement of September 29 he might have told the architect that he was getting a bond fixed up and that it would be ready in a day or two. Held, that the questions whether there ever was an agreement that the giving of a bond should be a condition precedent to the contract becoming of binding force, and whether, if there ever was such an agreement, it had been waived, were for the jury.
HAMMOND, J.
Upon the evidence we think that the questions whether there ever was an agreement that the giving of a bond should be a condition precedent to the validity or binding force of the contract, and whether, if there ever was such an agreement, there was a waiver of the condition, were for the jury, and that the case should have been submitted to them.
Exceptions sustained.