Thorndike v. Wells Memorial Ass'n

C. Allen, J. The sum which the defendant was bound to pay, upon using the wall, was “ the then market value of so much of said wall as he, she, or they shall use, such market value at the time of such use to be ascertained by the appraisal of two or more competent builders.” Until an appraisement by builders, or until something done by the defendant to prevent or avoid it, the defendant was in no such default as to entitle the plaintiff to maintain an action upon the agreement. The contract did not make it the duty of the defendant to go forward and appoint appraisers, of its own motion, independently of the plaintiff’s concurrence, and without any request to that effect from the plaintiff. The plaintiff’s demand of payment was therefore premature, because the sum to be paid was not ascertained. Haley v. Bellamy, 137 Mass. 357. Hood v. Hartshorn, 100 Mass. 117. Humaston v. Telegraph Co. 20 Wall. 20, 28. Thurnell v. Balbirnie, 2 M. & W. 786. Clarice v. Westrope, 18 C. B. 765, 785. The plaintiff’s demand did not entitle him to interest, the sum due to him being unliquidated. Palmer v. Stockwell, 9 Gray, 237. Exceptions overruled.