Sears v. Fuller , 1884 Mass. LEXIS 262 ( 1884 )

C. Allen, J.

1. The condition, “ if the Chelsea Beach Company will hold the town harmless from all damages arising from abutters on Ocean Avenue,” must be held to relate to the discontinuance of the avenue as a town way, and not merely to the return of the bonds and agreements. The town was willing to discontinue the way, if the company would hold the town harmless from damages; and not otherwise.

2. A more difficult question is, whether it was intended that the way should be discontinued at once, leaving the condition to be performed afterwards. The language is, that the avenue is hereby discontinued, if the company will hold the town harmless. But there was no provision that the selectmen or any committee might accept performance by the company, and therefore it was left for the town itself to do so. Allen v. Cooper, 22 Maine, 133. It does not appear to have been contemplated that any action of the company should be. brought before the town at that meeting. According to the natural order of events, the company should perform its part to the satisfaction of the town before the vote of the town would take effect. The town did not intend to discontinue the way without being indemnified against damages. Whether a condition is precedent or subsequent depends on the intent of the parties, to be collected from the nature of the case, and on the order of time in which the intent of the transaction requires the different acts to be performed. 2 Greenl. Cruise, 3, note. 4 Greenl. Cruise, 354. 2 Washb. Real Prop. 446. The order of the arrangement of the condition in the vote is quite unimportant. Looking at the intent of the transaction, it appears to us, on the whole, that the discontinuance of the way was not to precede the indemnity. The result is, that there was no valid discontinuance.

The present case is not like Harrington v. Harrington, 1 Met. 404, 408, where a town way was accepted, subject to a condition which could not be performed till afterwards; nor like Cheshire Turnpike v. Stevens, 10 1ST. H. 133, where there was a vote to discontinue a way, with the reservation of a right to open it again without paying damages, which right could not be acted on till a future day. Bill dismissed.