C. E. Osgood Co. v. Way

Holmes, J.

We think it unnecessary to trouble the plaintiff for an argument in this case. If the stipulation in the guaranty for an assignment of the lease is a condition concurrent with the defendant’s undertaking to pay, the judge has found that the condition was waived. The bill of exceptions especially states that it does not set forth all the evidence, so that if any ruling had been asked or exception saved as to that finding, we could not say that it was unwarranted. But even on the evidence reported it appears that the defendant’s refusal to keep his contract and to pay was of such a nature that the judge hardly could have helped finding that it imported a repudiation of the contract and was a refusal to- go on, whether the plaintiff should offer to assign the lease or not. Exceptions overruled.