Davis v. Smith American Organ Co.

Morton, J. The first ground of demurrer assigned by the defendant is, that it does not appear by the contract, whereon the plaintiffs rely, that the defendant made any promise to pay these plaintiffs. We are of opinion that this ground cannot be sustained. The contract provides for the appointment of an executive committee, who are to represent all the subscribers, and who alone can make any expenditures or incur any liabilities. The manifest purpose of the agreement was to guarantee the committee against any losses they might incur in carrying on the musical festival. The promise of each subscriber to contribute towards any deficiency which might arise could not have been intended to operate as a promise to each other subscriber, or to 458 the whole body of subscribers, to pay him or them the agreed proportion of any deficiency, because no one but the committee could make any expenditures, and thus lay the foundation for any claim for contribution under the contract. Though the agreement of the subscribers is, in form, “ each with the other,’ it is by reasonable implication, and in substance, a common agreement of all the subscribers with the executive committee, to pay to the committee, in the proportions and to the extent agreed, any loss which they might incur in carrying on the contemplated enterprise. This construction alone will carry out the purpose of the contract and the intentions of the parties. Athol Music Hall Co. v. Carey, 116 Mass. 471. Demurrer overruled.