Loring v. Otis

Has the defendant shown a partial failure of the consideration of the note in suit ? The deed of the land, for which the note was given, bounded it on “ a street recently laid out and called Otis Street,” and conveyed to the defendant “ the right to use said Otis Street in common with the grantors, their heirs and assigns, and all other persons to whom they may grant the same privileges, as a public road or highway.” This doubtless is an implied covenant that a street had been laid out, either by public authority or by the owners of the land. Parker v. Smith, 17 Mass. 413. But it is not a covenant that a street or road had been constructed and could be used as a passage way, at the date of the deed. If it had then been laid out by the county commissioners or by the town authorities, though not made fit for travel, the grantors’ covenant would not have been broken by the omission to construct the road, nor by its discontinuance.

Although the words of the deed, bounded by “ a street laid out,” do not show by what authority it was laid out, yet it seems to be a fair inference from the terms in which the grant was made to the defendant of the right to use the street, that it *566was laid out by the owners of the land—the grantors themselves. And by the agreement for the sale of the land, made between the defendant and the grantors in December 1845, four months before the defendant received his deed, it appears what was meant by “ a street laid out; ” that it was a street not constructed, but was to be thereafter constructed at the joint expense of the plaintiffs’ testator and the defendant, whenever either of them should notify to the other, in writing, his wish to have the same built. In that agreement, the street is called “ a contemplated street,” “ a street laid out thirty five feet in width,” and “ a road traced on a plan in dotted lines.”

Such being the facts, the court are of opinion that the defendant has not shown any failure of the consideration of the note in suit. The contemplated street, the street laid out, the road traced on the plan, was the street on which his land was bounded, and the right to use which was conveyed to him. It was not then constructed, but was to be constructed at his and Binney’s joint expense. The failure of Binney to join in constructing it is a subject of damages, which do not affect the consideration of the note.

Nor can those damages be set off against the note, under the counts in set-off filed by the defendant. Those counts, as framed, are clearly for unliquidated damages, which are not the subject of set-off. If the defendant had filed a claim for half the expense incurred by him in the construction of the street, perhaps it might have been allowed in offset.

Defendant defaulted.