Weed v. Boston & Salem Ice Co. , 94 Mass. 377 ( 1866 )

Hoar, J.

By the just construction of the contract of the parties, we have no doubt that the plaintiff is entitled to recover the instalment of the purchase money which he had paid before the destruction of the property purchased.

The agreement is that the defendants “ will sell ” for a sum to be paid in the manner stipulated. This imports an executory contract, though the expression used would not be of great importance, if it appeared from other parts of the instrument that the property was to pass. But it is expressly stated afterward that “ the whole of the ice is to remain the property of said company until it shall have been removed from the ice-house and sold.” There was then no completed sale, and no property vested in the plaintiff, when, by the destruction of the ice, the further execution of the contract became impracticable.

Another clause of the instrument is very significant, and shows that the parties not only understood that the property remained in the vendors, but that it was to be at their risk, and to be kept insured by them.- The plaintiff agrees “ that he wil pay all expense of insuring the ice now in the houses, after three months, until the full consideration shall have been paid.” There is no agreement by the plaintiff to insure, either during the three months or afterward; but he is to pay “ the expense of insuring.” This certainly implies that the defendants were to keep the property insured, after the three months; and we think it contains some implication that it was to be kept insured at their expense during those months. There was no delivery to the plaintiff of the ice. He was at liberty to put more ice into the ice-houses, but not to remove any from them without making a further payment of seventy-five cents a ton, in addition to the stipulated instalments of the purchase money, until the whole was paid for. There was no lease of the ice-houses, and no possession of the ice by the plaintiff, actual or constructive ; only the permission to remove it upon certain terms and conditions.

The case is distinguished from Rider v. Ocean Ins. Co. 20 Pick. 259. In that case the vendors, though retaining the right of property, had delivered the vessel to the vendee, who had also agreed to keep her insured; and it was held that the vendee who had paid an instalment of the purchase money, and given promissory notes for the remainder, and had possession, had an insurable interest. Nothing then remained to be done by the vendors, and they had received the entire consideration for the sale. The destruction of the vessel would not therefore discharge the vendee, or enable him to recover back the purchase money paid. Here the property, possession and risk remained with the vendor; and when the ice was destroyed, the contract was no longer capable of performance. The consideration on which the plaintiff paid his money failed, and he is entitled to recover it back.

Judgment for the plaintiff on the facts agreed.