Pleading, Civil, Declaration. Contract, What constitutes, Performance and breach. A declaration alleged that the defendant requested the plaintiff to submit an estimate and to make an offer of the amount for which he would erect a building for the defendant according to certain plans and specifications, and promised that, if the plaintiff's offer of a price was accepted, he, the defendant, would give to the plaintiff a bond conditioned upon the performance by the defendant of a contract for the erection of the building; that the plaintiff submitted an estimate and made an offer which the defendant accepted, and that the defendant promised to pay to the plaintiff a certain amount for the erection of the building from time to time as the work progressed, and to give the bond above mentioned; that the plaintiff had always been ready and willing to carry out the contract, but that the defendant refused to execute and deliver the bond. The defendant demurred. Held, that the demurrer must be overruled, since, although the principal purpose of the parties to the contract was the erection of the building, the giving of the bond was intended to be concurrent with the making of the contract and a condition precedent to performance by the plaintiff, and therefore there properly was alleged a contract which was broken by the defendant.
BRALEY, J.
The declaration, after allegations of preliminary negotiations, sets forth the oral building contract into which the parties entered. By its terms, the plaintiff contracted to erect and complete a building according to certain plans and specifications, for which the defendant agreed to pay a fixed sum "from time to time as the work progressed," and to furnish a bond to secure the performance of his promise. The contract having contained no provisions as to the time within which the building was to be begun and finished or the bond given, the plaintiff became entitled to a reasonable time within which to perform, while the delivery of the bond was intended to be concurrent with the making of the contract. It evidently was the intention of the parties that full compensation was not to be made until completion, even if instalments were to be advanced as the work progressed, and, the contract being indivisible, performance by one party was conditioned upon performance by the other. Fullam v. Wright Colton Wire Cloth Co. 196 Mass. 474. But, while the principal purpose was the erection of the building, yet the giving of security for the payment of the price was intended to be a precedent condition before performance by the plaintiff could be demanded. Cadwell v. Blake, 6 Gray, 402. The plaintiff alleges his readiness to have gone forward, but it is averred that the defendant absolutely refused to execute and deliver the bond, and this refusal prevented him from performance. By his unqualified refusal the defendant placed himself in default, and the plaintiff had the right either to rescind the contract, leaving him without any cause of action, or to treat it as terminated and bring suit for such damages as he had suffered from the breach. Earnshaw v. Whittemore, 194 Mass. 187, 191, and cases cited.
The necessary averments, upon proof of which the plaintiff is entitled at least to nominal damages, having been stated with substantial certainty, the declaration is sufficient, and the demurrer not well taken. R.L.c. 173, § 6.
Judgment reversed; demurrer overruled.