Riley v. Farnsworth , 111 Mass. 152 ( 1872 )

Chapman, C. J.

The action is brought upon a written agreement, recited in the declaration, as follows: “ Auctioneer’s agreement. Office of G. F. Hunting & Leavitt, auctioneers. December 31, 1870. We hereby acknowledge that Laurence J. Riley has been this day declared the highest bidder and purchaser of house 23 Pine Street, for the sum of $3850, and that he has paid into our hands the sum of |300, as a deposit, and in part payment of the purchase money; and we hereby agree that the vendor shall in all respects fulfil the conditions of sale. Vendor’s name, George B. Farnsworth, mortgagee. G. F. Hunting & Leavitt, auctioneers.” But it omits to state what the conditions of sale were, so that there is no allegation that the defendant agreed to do anything.

The defect is not aided by the allegation that the plaintiff paid $300 at the time in part payment for the property, and agreed to pay the further sum named as the balance on or before January 15, and tendered it on January 14, and demanded a conveyance, for these averments do not allege what the conditions were. The defects might have been supplied by an amendment, but the plaintiff has elected not to make such amendment, and the court must decide whether the declaration is sufficient as it stands.

jDemurrer sustained.