Frothingham v. Seymour , 121 Mass. 409 ( 1877 )

Ames, J.

The only question raised by this bill of exceptions is whether the instruction requested by the defendant ought to have been given. We are bound to presume that in all other respects the rulings of the presiding judge were correct.

It appears from the facts reported, that immediately after the signing of the contract the plaintiff took his departure for Michigan, and that he had not returned at the date of the defendant’s letter to him. By the terms of the contract, he had a right to be so absent for the term of six months, and his absence had not exceeded that period. Until his return, he had not shared, and by the terms of the contract could not have shared, in the benefit of the proposed business. The agreement in that event allowed him the alternative either to practise his profession at Hinsdale in copartnership with the defendant, or to withdraw entirely from that “field of practice” for the term of two years, in which latter event he was to be entitled to a pecuniary compensation from the defendant. The fact that the defendant, by his own act, had rendered one part of his alternative promise impossible of fulfilment, does not relieve him from the other. Drake v. White, 117 Mass. 10. It was not in his power, by his own separate act, to cancel the contract, or deprive the plaintiff of any of his rights under it. If the plaintiff withdrew from practice at that place and for the specified term of time, it was a sufficient consideration for the defendant’s promise to pay him a prescribed compensation. The former decision in this case, reported 118 Mass. 489, affirmed this proposition; and ordered a new trial, only because one of the instructions given at the first trial had appeared to assume that a sufficient consideration on the part of the plaintiff was shown by the contract itself, without regard to his subsequent acts. The partnership having been rendered impossible by the act of the defendant, there was no occasion for the plaintiff to give notice of his intention to resort to the other clause of the contract. It follows that the instruction requested was properly refused, and that the defend ant’s Exceptions are overruled.