Johnson v. Moss

By the Court, Belcher, J.: The contract, as it is set out in the complaint, did not require the defendant to give to the plaintiff any written guaranty that he would- not reestablish his ferry. It is simply alleged that the plaintiff purchased of the defendant, for the consideration of one thousand five hundred dollars, the good will and franchise of the ferry, and that the defendant agreed to remove his ferryboat and fixtures, and that he would not again establish or maintain a ferry, or permit one to be established or maintained at the same point. As against the plaintiff the complaint must be presumed to state correctly the terms of the contract. When, therefore, the plaintiff proved by his own testimony that he bought the right of way of the defendant’s ferry, and that the defendant was to give him a written guaranty that “there should be no more ferry there,” he proved a contract essen [518] tially different from the one declared on, and for that reason the motion for nonsuit should have been granted. Moreover the case shows that the defendant discontinued his ferry for about four years, and only reestablished it after frequent requests to and refusals by the plaintiff’ to pay him the balance of the sum agreed to be paid for it. This refusal to pay was based upon the fact that the defendant declined to give a written guaranty which, as we have seen, the contract declared on did not require him to give. The plaintiff then was the first to violate the agreement, and if, under these circumstances, he suffered damage, we do not see how he can be heard to complain of it. He should have performed his part of the agreement before insisting upon performance by the defendant. Judgment and order reversed, and cause remanded for a new trial. Mr. Justice Rhodes did not express an opinion.