Clough v. Baker

Clough v. Baker.

'C. sold his business as a dentist to H. H. gave him a note for $3000 for the same, signed by himself and B. as surety, and C. gave H. a bond, that, in consideration aforesaid, he would not practice as a dentist in anyplace within five miles of Boston, or in South Beading, &c, and containing other stipulations to be done and performed by said 0. in the line of his said profession.

'This note having been partly paid by H., C. brought a suit upon it against B., the surety, to recover the balance. B. filed a brief statement, alleging that there.had been a partial failure of consideration of the note, on the ground that C. had failed to perform the conditions.of his bond.

'On motion this brief statement was rejected.

Assumpsit upon the following promissory note:

"Boston, December 28, 1864. $3000.

.For value received I promise to pay John Clough, or order, the sum of three thousand dollars within five years from the date hereof, with interest semi-annually, payable in twenty equal quarterly payments on the tenth day of January, April, July and October in each year, the first pavment to be made on the tenth day óf April next.

r'm n GEORGE B. HARRIMAN.

|_STAMP.J STEPHEN C. BAKER, Surety.”

On this note were endorsed all the payments that became due up to and including October 10, 1866, and all the interest as it had become due to July 10, I860.

Defendant pleaded the general issue, and also made the following brief statement of his defence, to wit:

That said defendant signed the note mentioned in the plaintiff’s declaration, only as the surety of one George* B. Harriman, on the day of its date, to wit, on the 28th day of December, A. D. 1864, at the request of said plaintiff, all of which the plaintiff well knew.

That said note is entirely without consideration and void, and the consideration of said note has wholly failed as hereinafter stated.

That on the day of the date of said note, and as a part of the same transaction, and as the consideration for said note, said plaintiff made, signed, sealed and delivered to said Harriman, his bond in the penal sum of five thousand dollars, bearing the date aforesaid, cqnditioned among other things as follows, namely: "And whereas, said Clough,” (the plaintiff,) "for the consideration aforesaid, has promised and agreed and does hereby promise and agree, that he will not again practice his said profession or perform any dental operation (except for the benefit of said Harriman or by his written consent,) in said Boston, nor in any place within five miles of said Boston, nor in South Reading, in said county of Middlesex"and that he will be present in the office of said Harriman, in said Boston, twenty-eight half days in the course of said year, for the purpose of promoting the interests of said-Harriman in said business, unless prevented by death or sickness, and that he will recommend said Harriman as a competent and skillful dentist, to all persons who shall make known their wish to said Clough,” (the plaintiff,) "to employ a dentist in Boston.”

That before and at the time of the making and the delivering of said bond and said note, the defendant well knew the contents of said bond, and thg promises and agreements in the condition of said bond, on the part of the plaintiff to be kept and performed. That in sole consideration of said promises and agreements of said plaintiff, and relying thereon, the defendant was induced to sign said note as surety as aforesaid.

That said plaintiff has not kept and performed his said promises and agreements contained in the conditions of said bond, to be by him kept and performed, but has broken, neglected and refused to keep and perform the sanie, in this, that said plaintiff has, on divers days and times between said 28th day of December, 1864, and the date of plaintiff’s writ, again practiced his profession of dentist, and has performed dental operations (which were not for the benefit of said Harriman, and not by his written consent,) for divers individuals in said Boston, and in divers places within five miles of said Boston, and in South Beading, in said county of Middlesex; that said plaintiff was not present in the office of said Harriman, in said Boston, twenty-eight half days in the course of said year for the purpose of promoting the interests of said Harriman in said business, and was not prevented from being so present either by sickness or death; that said plaintiff has not recommended said Harriman as a competent and skillful dentist to all persons who made known their wish to said plaintiff to employ a dentist in Boston, as by his said bond he had promised and agreed to do, but, on the contrary, has on divers days and times, between said 28th day of December, 1864, and the date of the plaintiffs writ, advised and solicited divers persons in Boston and in divers other places within five miles of said Boston and in South Beading aforesaid, who made known to said plaintiff their wish to employ a dentist as aforesaid, to go to Woburn, where said plaintiff resides, and let him, the said plaintiff, do and perform their dentistry, and has given said persons free tickets on divers public conveyances for that purpose.

That said plaintiff by reason of not keeping and performing' his said promises and agreements aforesaid, has obtained and received of said persons in said Boston, and in divers other places within five miles of Boston and in South Beading, for whom he performed dental operations in such cities, towns and places aforesaid, or in said Woburn, divers large sums of money for such dentistry done and performed by the plaintiff for said persons contrary to the true intent and meaning of his said bond, and to his said promises and agreements in the condition of said bond contained, to wit, to the amount of two thousand dollars; which, agreeably to said promises and agreements of said plaintiff, the said Harriman ought and would have received had the plaintiff kept and performed his said promises and agreements, and that said Harriman would have.been thereby enabled to pay said note, and relieve his surety, this defendant, from any liability thereon.

The plaintiff moved the court to reject the brief statement, and the case was reserved.

Blair & Carpenter, for plaintiff.

I. The brief statement discloses no defence. It alleges that the bond was the consideration of the note, and such was from the nature of the case, plainly the fact, — it is not denied that it remains in full force. The defendant, then, has got all he bargained for, and there is no failure of consideration. Traver v. Stevejis, 11 Cook, 167; Water-house v. Kendall, 11 Cook, 128; Webb. v. Slone, 24 N.. H. 282— 288; Shepherd v. Merrill, 20 N. H. 415; State v. Ilobbs, 40 N. H. 229; Manning v. Brown, 1 Fair. 49; Smith v. Sinclair, 15 Mass. 171; Trashv. Vinson, 20 Pick. 105 — 110; Sanborn v. French, 22 N. II. 246; Titus v. Coolc, 24 N. II. 329; Qeichell v. Chase, 37 N. II. 106.

II. In all cases of mutual independent promises, each party has his remedy on the promise in his favor, without performing his part of the contract.. Pardye v. Cole, 1 Saund. 320, notes; Cutter v. Powell, 2 Smith L. C. 10 notes; Campbell v. Jones, 6 T. B. 570; Sumner v. Parker, 36 N. H. 419; Putnam, v. Mellen, 34 N. H.‘ 71; Chitty on Contracts, 633; 2 Parsons on Contracts, 41, and cases cited.

A failure by either party to perform his part of the contract constitutes no failure of consideration; indeed, wherever the consideration of a promise is an executory agreement — an agreement to do something in the future — not void in itself, there plainly can bo no failure of consideration, either total or partial. A failure to perform the agreement may or may not, according to circumstances, entitle the other party to treat the whole contract as rescinded; but the distinction between this class of cases, and cases of failure of consideration, is a broad one. Tillotso7i v. Grapes, 4 N H. 444; King v. Hutchins, 28 N. H. 578; Webb v. Sto7ie, 24 N. H. 288; Weeks v. Pobie, 42 N. H. 320; Drew v. Claggett, 39 N. II. 431; Stevens v. Cushing, 1 N. H. 17; 1 Parsons on Contracts, 386, and notes.

The brief statement shows no such statement as would entitle the defendant to rescind; it admits that the contract has been partially performed by the plaintiff, who manifestly can never be restored to his original situation. Even if entitled to rescind, the defendant has never elected to do so, on the contrary, he is now insisting before the court that plaintiff’s bond is in full force, and claiming damages for the breach of its conditions. The defence set up, is not a failure of consideration, it is simply an attempt to set off against the note a claim for unliquidated damages, for the breach of independent covenants of the plaintiff.

Burrows, for defendant.

Cited and commented on: Gen. Stats, ch. 201, sec. 11; Shepherd v. Merrill, 20 N. H. 412; Tillotso7i v. Grapes, 4 N. II. 444; Copp v. Sawyer, 6 N II. 386; Earle v. Paige, 6 N. H. 477; Drew v. Towle,27 N. H. 412; Haynes v. Thom, 28 N. H. 386; Hazelto7iv. Guild, 11 N. II. 390; Curleton v. Woods, 28 N. H. 29; Fuller v. Bean, 30 N. II. 181; Cobur/i v. Odell, 30 N. II. 540; Biddle v. Gage, 37 N. II. 519; Fvistee v. JPjfaagle, 11 Johns. 50; Shepherd v. Temple, 3 N. II. 455: Seddard v. JIaine, 2 Bing. 183; Wheeler v. Board, 12 Johns. 363; Fatrar v. Kightingale, 2 Espin. N. P. C. 639; Weaver v. Bentley, 1 Caines B. 47; JSfichols v. Huntoon, 45 N. H. 470.