McIntosh v. Groomes

Plaintiff declared on the written contract alone and as a part of the declaration set it out in full. Her oral testimony was that defendant "said he would draw up another contract if it was not satisfactory;" she also gave the testimony quoted by my Brother SHARPE that defendant said "he would guarantee that thousand dollars and I was to have a guaranty of a thousand dollars a year." Unless it pertained to a proposed new contract, the last quoted sentence is in direct conflict with the provision of the contract declared upon that the thousand dollars was payable "from the sale of said valves." It was not explanatory of the contract or an aid to its construction. If permitted to stand and the case sent to the jury, they might well have found for plaintiff on the theory that defendant during the preliminary negotiations orally guaranteed the payment of $1,000 a year rather than upon the terms of the written agreement declared upon that from the sale of valves he had agreed to pay her that sum. I think this testimony clearly tended to vary and change the terms of the written contract and that the trial court properly struck it out.

With this testimony stricken out it became the duty of the court to direct a verdict for defendant. The payments were to be made from a specific fund, i. e., from the sale of the valves, and the record discloses that a sufficient number of valves had not been sold to require the payment of any sum to the plaintiff under the terms of the written contract beyond the amount she had received. Indeed she had been largely overpaid. There was no money in the fund from which the parties had agreed the payments should be made.

In 13 C. J. p. 631, it is said:

"A contract or promise to pay may be restricted to a particular fund, so as to make the raising or the sufficiency of the fund a condition precedent to the liability, and in such case the promise cannot be enforced until the fund is realized, unless the failure to realize or collect the fund from which payment is made is due to the neglect, or to the unreasonable refusal to act, of the promisor, or is otherwise attributable to him. So, where the contract of the parties is that the creditor shall look to a particular fund, he cannot, on the failure of such fund not attributable to the fault of the debtor, hold the debtor personally responsible, unless the contract contains stipulations amounting to a guaranty that the funds specified shall be sufficient for payment, or unless the promisee is induced to perform by the promise that a third person who, the promisor claims, owes him a debt or duty, shall pay the agreed price to the promisee, in which case the promisor is primarily liable to pay the contract price, although his debtor does not pay, or the debt or the duty does not exist."

See, also, Smith v. Ross, 51 Mich. 116; Mason v. Warner,43 Mich. 439.

In the instant case the contract alone is counted upon. No claim is made in the declaration that defendant was negligent in making sales of the valves, or in failing to provide the fund from which the payment was to be made. Nor is it alleged in the declaration that by reason of defendant's transferring the contract to a company he has put it out of his power to comply with its provisions and is, therefore, liable, a point here raised but which I do not find was made either upon the trial or by the motion for a new trial.

I think the judgment should be affirmed.

WIEST, J., concurred with FELLOWS, J.