Somers v. Thayer

Ames, J. The terms of the order accepted by the defendant bring this case within the decision in Newhall v. Clark, 3 Cush. 376. The order refers to the contract subsisting between Harriman and the defendant. It is made payable on the completion of the house which Harriman was then building in Randolph, for the defendant, and it directs that when paid it is to be charged to Harriman on account of that contract. The order looks to the future; to work to be done and to materials to be supplied by the drawer for the use and benefit of the acceptor according to contract. The acceptance was an agreement to the request expressed in the order, and as that was contingent, the acceptance was an undertaking on the same contingency. Nothing was to be paid until the building should be finished. The direction to charge the payment to Harriman on account of that contract, and the terms of the order generally, are in their legal effect equivalent to a designation of a time of payment, and also of the fund out of which the payment was to be made, both of which were to depend upon the completion of the house by Harriman, according to his contract. As he has not fulfilled his contract, the time of payment never arrived, and the fund which was expected to accrue, and from which payment was to be made, never existed. The defendant therefore is not liable on his acceptance. In Cook v. Wolfendale, 105 Mass. 401, which is relied upon by the plaintiffs, the acceptance was given in consideration of lumber furnished to the contractor to be used in building the house for the acceptor. And the terms of the order contained no reference to the building contract, but merely fixed the time of payment as the time when the building should be “ ready for occupancy.” Judgment for defendant.