JOHN E. DRAKE v. FRANCIS L. WHITE AND ANother. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS, [Reported in 117 Massachusetts 10.] CONTRACT upon the following agreement, signed by the defendants: "Boston, October 22d, 1872. Received of John E. Drake one Morris & Ireland fire proof safe, which we promise to deliver the same to said Drake, or its equivalent in money, on payment of a certain note signed by said Drake, dated October 22d, 1872, payable in four months from date, for the sum of $276.68." Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows : The plaintiff purchased leather of the defendants, giving them his note for the price thereof, and, to secure the payment of the note, deposited with them the safe in question, giving them a bill of sale of the safe, upon the back of which was written the agreement upon which this action is brought. The plaintiff testified that he authorized the defendants to find a customer for the safe, which he desired to sell, and authorized the defendants to sell it for $400, but that any customer for a less price was to be referred to him. The defendants testified that they were authorized to sell it for $300, but that, if any less sum was offered for the safe, they were to inform the plaintiff, who was to decide about accepting the offer. No customer was found for the safe. The plaintiff paid his note at maturity, and made a demand for the safe, before bringing this action. The safe was destroyed by the fire of November 9th, 1872, and there was no evidence of negligence or want of due care upon the part of the defendants. The judge instructed the jury, that by the terms of the agreement the defendants were bound to account to the plaintiff for the value of the safe as it was when deposited with them. The jury returned a verdict for the plaintiff; and the defendants alleged exceptions. O. Stevens for the defendants. N. B. Bryant for the plaintiff. AMES, J. This is a case of a deposit of personal property by a debtor in the hands of a creditor as collateral security for the debt. If it presented merely the ordinary incidents of a pledge, it would be manifest that the action could not be main tained. The destruction of the property is conceded to have been accidental, without fault or neglect of duty on the part of the defendants. But the claim of the plaintiff is, that the transaction differs widely from an ordinary pledge, and he contends that, by the terms of a written contract, the defendants have taken upon themselves a special liability of a much more extensive character. If, in the common case of a pledge, the common law contract were reduced to writing, it would contain among other things a stipulation that the pledgee should not be responsible for the loss of the property, unless some want of reasonable and ordinary care on his part were the cause of such loss. In the present case the parties have reduced their contract to writing, and have omitted to attach to the defendants' liability for the property any limitation whatever. On the contrary, their express promise is to do one or the other of two things: either to return the property specifically, or to pay for it in money. There can be no doubt that if a creditor sees fit to accept a deposit of security upon such terms, and to place himself in the position of an insurer of its safety, he can legally do so. It is not difficult to suppose a case in which the parties might find it convenient that the business of guarding against the risk of fire or other accident should be attended to by the depositary. But however that may be, the proper interpretation of the contract is to be determined by the general rules of construction recognized by the law; and if the parties have improvidently made their contract more onerous than they expected, the difficulty cannot be removed by a violation of those rules. It is said that the written instrument declared upon is a receipt and as such is open to explanation. It is true that it is a receipt, but it is also a promise clearly expressed. Brown 7. Cambridge, 3 Allen, 474. We see no way to avoid the conclusion that the plaintiff's construction of that promise is correct. The difficulty with the defendants' case is, that, although their purpose was to take collateral security for a debt, the terms in which they have expressed themselves as to what they are to do with the pledge on the payment of the debt contain a positive and unequivocal promise either to return it, or to pay an equivalent. The fact that one part of this alternative promise has become impossible of fulfilment does not relieve them from the other. Chit. on Con., 11th Am. ed., 1061; Stevens 7. Webb, 7 C. & P. 60; State v. Worthington, 7 Ohio, 171. Exceptions overruled. Render See I (a) lake - 1140, 1021, 1022, 1030,103/ 10 33, 1142, 1153, 1375, 1165, 1353, 1357, 1144, 1373,1156, 1166, 1352, 1037, 1158, 1044, 1062, 1351, 1381, 1383, 1355, 1362, 1169,1367 CHAPTER VI. CONDITIONAL AND UNCONDITIONAL CONTRACTS. SECTION I.-CONDITIONS PRECEDENT OR CONCURRENT. 1020 See 1086 RANAY v. ALEXANDER. IN THE KING'S BENCH, MICHAELMAS TERM, 1605. [Reported in Yelverton 76.] THE plaintiff declared that whereas the defendant was possessed of 17 tod of wool, and whereas colloquium fuit between them for 15 tod of the 17 tod, to be chosen by the plaintiff; the defendant in consideration of £6 to be paid on such a day, etc., promised to deliver the plaintiff prædictas 15 tod of wool, and said in facto, that he was ready at the day to pay the £6, yet the defendant had not delivered the plaintiff the 15 tod of wool, to his damage, etc. And upon non assumpsit pleaded, it was found for the plaintiff; and it was shown in arrest of judgment that the declaration was not good, because the plaintiff had not shown that he had chosen 15 tod out of the 17, and that is quasi a condition precedent; and an act to be first performed by the plaintiff, before the defendant is bound by his promise to do anything. Quod fuit concessum per totam curiam. But per Popham, C.J., if the defendant had sold one of the tods of wool before election made by the plaintiff, that had destroyed the election, and made the promise absolute, and had been a breach of it. The same law if the defendant would not have permitted the plaintiff to see the wool, that he might make election; for that had excused the act to be done by the plaintiff, and had been a default in the defendant. And the matter aforesaid is much enforced by the word prædictas in the declaration, for that can be referred to nothing but the communication by which the plaintiff of his own showing ought to make election. Then the plaintiff omitting it in his declaration shows the fault is in himself, which ought to be removed before he can charge the defendant. But if the communication had been, that the plaintiff Conditions I Express I aguent to do 1 مبتسم བའི་རྒྱུ།Úེག in fact, II Duiflied in law. to as thing if someching lakes place Express - simply words Local or willen, parties. Con.. 2. Implied in fact 3. a. Implied by conduct 6. Necessity. "I will go to S. T with Implied in law. < Anoblig, imposed by law without consent? as ad B con is sell flour, a to fay a, b. Cases where fareness. in cand if they had world have fut if they had thought beet which I Precedent, concurent & subsequent. (These coud, me not to making con, are conds, after con is made to These 3 conds, affly to the ableg. is cany prose, to making obliq to perform 2. By conceument is meant itat 3. must be performed at same time. معتمد Subsef. Ex. Ins. folicy, saying thes if loser fails to sue weekin. bride. a cond chat conced in and cul's of a forment complete cause faction All have reference to absolute oblig is fuform There is no abs. obliq rich 142, but is leftre Keenin Durasi con 222-6, 241-4 Риш Early Law before 1773, when no implied cond, after 1973 m. the lord of a manor covenanted to assure the freehold to one of his copyholders and his heirs, and the copyholder in consideration of the same covenant performed, promised to pay a certain sum of money, and it was adjudged that the copyholder was not obliged to pay the money until the lord had first performed the covenant on his part; but it is otherwise, says the book, if the covenant on the part of the copyholder had been, in consideration of the covenant to be performed. And here the words are in consideration of the performance of the plaintiff's covenant, which is as much as to say in consideration of the covenant performed. Wherefore he concluded that here was a condition precedent, which being broken, the defendant is not bound to pay the £100 a year. Sed non allocatur; for the plaintiff's covenant being in the nature of a negative covenant-namely, that he will not use his trade with the customers-if the words, in consideration of the performance thereof, should amount to a condition precedent, the plaintiff would never have the £100 a year during his life, because it is not possible for the plaintiff to perform his covenant in his lifetime, for at any time during his life he may break it, and a negative covenant is not said to be performed until it becomes impossible to break it, which impossibility can only happen here by the plaintiff's death. And therefore such a construction would entirely defeat the intention of the parties, for it plainly appears that their intent was that the plaintiff should have the £100 a year during his life, and therefore it is not a condition, but the defendant may have his action of covenant against the plaintiff for breach of the covenant on his part. And although it was urged that the £100 a year should be paid until the plaintiff has broken the covenant on his part and no longer, and that such was the true meaning of the parties, and when the plaintiff has voluntarily broken the covenant on his part, he seems to be content that the £100 a year should not be paid any longer, yet this was overruled by the Court. Wherefore it was adjudged for the plaintiff. THORP v. THORP. IN THE KING'S BENCH, EASTER TERM, 1701. [Reported in 12 Modern Reports 455.] ERROR from the Court of Common Pleas of a judgment in an action on the case, wherein the plaintiff declared that the defendant had and held of him, by way of mortgage, two closes of copyhold lands; and that there was a discourse between |