Prentiss v. Garland

Appleton, C. J. The plaintiffs on the fourteenth day of June, 1872, entered into a contract with Eben Thissell to drive his logs at specified prices. The defendants at the same time signed the following agreement: “We hereby agree that said Eben Thissell shall make the payment as per the above contract, promptly, when the logs are driven as above specified, to the Penobscot boom. D. W. Garland & Co.” The objection taken is that no suit has been brought against Thissell for the amount due, and that therefore this action cannot be maintained. The logs arrived at their destination. The principal, Thissell, was called upon to make payment but neglected. The defendants agreed that he should make payment according to the terms of the contract and “promptly.” It has not been done. The agreement of the defendants, has not been performed. It was for the defendants to see that it was performed. Not having kept their promise, they must be held liable for its non-performance. The bringing a suit against Thissell is not made a condition precedent to the enforcement of the defendants’ liability. Motion overruled. Dickerson, Daneorth, Peters and Libbey, JJ., concurred.