Hawks v. Truesdell , 94 Mass. 564 ( 1866 )

Chapman, J.

The contract between Jenks and the defendant related to the sale of property owned by them jointly. It was agreed that one of them ought to own the whole, and, as a method of determining which should be the purchaser, Jenks agreed in consideration of the note in suit to state what he would give or take. After deliberating he stated his price, and the defendant decided to sell to him at the price named. It was a part of the consideration of the note that the party who was to buy the property should fulfil the bargain. Jenks has not fulfilled the bargain, and so the consideration has failed. To hold otherwise would be to disregard the substance and stand upon a quibble.

It is contended that the conveyance by the defendant was a condition precedent to the payment of the money by Jenks, and that therefore this defence cannot be maintained. If this were an action in favor of the defendant against Jenks to recover the money, it might have been necessary that such conveyance should be tendered. But in order to establish a defence against the note, it is only necessary to show the failure of Jenks to perform the contract on his part. This failure appears by the fact that he went away agreeing to get the money and have the papers drawn, and never returned or in any way fulfilled his agreement. The defendant has not been in fault, and is not precluded from relying on the failure of the consideration as a defence t"> this action. Exceptions sustained,