Whitney v. Cady

The demurrer was properly overruled. The contract set up in the complaint is not merely a promise to idemnify; it is also an express promise to pay. In such case a refusal to pay is a breach of the contract. Lathrop v. Atwood, 21 Conn. *117, *123.

The court erred in expunging paragraph two of the second defense. (The paragraph, however, is improperly pleaded as a second defense; it should have been added to the previous allegations of the answer.) The guaranty against competition from the plaintiff Whitney, was a material part of *171the consideration for the defendant’s promises to the firm. The agreement is made by "Whitney & Hines as partners; they agree to sell their stock in trade, assets and goodwill, to the defendant, for a cash payment and “ the performance of stipulation and agreements hereinafter contained; ” they then say, “ as an additional consideration for the above conveyance, the said vendee has agreed ” to pay the firm liabilities, and the said Whitney has agreed not to engage in the mercantile business such as Whitney & Hines have been conducting “ and hereby sell to said Cady.” This document they sign with their firm name. The defendant’s assent is as follows: “ I hereby accept the above instrument and con sent and assent and agree to all of the stipulations contained therein.” Certainly this is, at least, equivalent to a sale by Whitney & Hines and a purchase by Cady, upon the part consideration that the business such as that sold shall not for a certain period be carried on by one of the partners in opposition to Cady. If the agreement had promised that neither partner should interfere, the consideration would be enlarged, but it would not be any more truly a consideration for the firm contract.

The defendant alleges the failure of this consideration. A partial failure of consideration may be material in estimating damages in an action on the contract. Moore v. Ellsworth, 3 Conn. 483, 488; Cook v. Mix, 11 id. 432, 438; Andrews v. Wheaton, 23 id. 112, 118. Even if Hines may not be liable for all damages accruing to Cady from Whitney’s conduct, he cannot, jointly with Whitney, claim a specific performance of the agreement, if Whitney’s conduct in violation of the agreement has made its performance as a whole impossible, and its partial performance inequitable.

We think the allegation expunged was material to a proper defense. If there were a doubt as to this, the doubt would surely be a substantial one upon which the defendant would be entitled to be heard in full on demurrer; it is not one of those questions that may be summarily disposed of on a motion to expunge. Such motion is outside the regular pleadings in a cause. It was not intended and is not adapted to *172test the substantial rights of parties; its main use is to enable the court to purge the record of impertinence and surplusage. Practice Act, p. 4, § 10. Granting the motion may be discretionary. Bassett v. Shares, 63 Conn. 39, 42. To reject, on such a motion, substantial claims of a party, may practically be depriving him of his day in court.

There is error, the judgment of the Superior Court is set aside and a new trial granted.

In this opinion the other judges concurred.