Gosline v. Albro Clem Elevator Co. , 174 Mass. 38 ( 1899 )

Hammond, J.

The second count sets out in the first place that an agreement was made between the plaintiff and the defendant for the construction of a car by the plaintiff for the defendant, and avers , that the plaintiff has performed the contract.

It then avers that the defendant claims the contract has been changed; and the plaintiff denies that it has been changed, and avers that even if it has been changed the defendant has not performed the contract as claimed to have been changed, to the damage of the plaintiff.

The two contracts described in the declaration are entirely inconsistent with each other in their leading features. The latter entirely supersedes the former, and is in no sense merely an alteration of or an addition to it.

The facts are not alleged with substantial certainty. It is impossible to tell upon which contract the plaintiff relies.

Demurrer sustained.