Chism v. Schipper
Supreme Court of New Jersey
On demurrer to declaration. On case certified from the Essex Circuit Court. The declaration was founded on a building contract, under seal, whereby it was alleged the plaintiff agreed to “erect- and finish” a certain dwelling-house “agreeably to the drawings and specifications by Oscar S. T., architect, within the time aforesaid, in a good, workmanlike and substantial manner, to the satisfaction and under the direction of said architect-, to be testified by a writing or…
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On demurrer to declaration. On case certified from the Essex Circuit Court. The declaration was founded on a building contract, under seal, whereby it was alleged the plaintiff agreed to “erect- and finish” a certain dwelling-house “agreeably to the drawings and specifications by Oscar S. T., architect, within the time aforesaid, in a good, workmanlike and substantial manner, to the satisfaction and under the direction of said architect-, to be testified by a writing or certificate, under the hand of said architect; ” that the plaintiff was to furnish all materials, &c., and that for his work…
1DissentMagie, J.
It is conceded that the contract sued on does not impose on the owner an absolute obligation. By its terms his obligation to pay arises only upon the performance of a condition precedent, viz., the production by the builder of the specified certificate by the architect named.
A count on such a contract must show performance of the condition precedent, or a valid excuse for. non-performance. Unless one or the other is shown, the count will be bad on demurrer. Since the count in question admits non-performance of the condition precedent, the sole question presented by the demurrer is whether it…
2Cases cited4 opinions
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- Bowery National Bank v. Mayor of New YorkNew York Court of Appeals · 1875
- Johnson v. Phœnix InsuranceMassachusetts Supreme Judicial Court · 1873
- Bell v. Ohio & Penna. R. R.Supreme Court of Pennsylvania · 1855