Pawtucket Institution for Savings v. Almy ( 1880 )

Pee Cueiam.

The plaintiff seeks to recover in this action, not the machinery and fixtures which passed with the demised premises to the lessees, the title to which, subject to the lease, remained in the lessors, but the machinery and other personal property acquired by the lessees and placed on the demised premises after the making of the lease, and the title to which, when acquired, was in the lessees, subject to the executory agreement for purchase and sale at an appraisal contained in the lease. The property is declared on as the goods and chattels of the plaintiff, and there is nothing in the plea to show that it has ever become fixtures by annexation to the demised premises. The only question raised by the pleadings is, whether the mere existence of the executory agreement aforesaid in the lease' is a defence to the action. We think it is not. The plea does not even allege that the defendant and his co-lessors have offered, or that they are ready and willing to perform the agreement on their part; whereas, for anything that is averred, the plaintiff may be prepared to show at the trial, if necessary, that it has on its part offered to perform the agreement, and that the defendant and his co-lessors have refused. The plaintiff’s replication to the special plea is, therefore, sustained, and the demurrer overruled.

Demurrer overruled.