Sibley v. Felton

Morton, J.

The plaintiff’s declaration is framed on the theory that the agreement between the defendants was a completed one. We do not so regard it. It begins by saying “that the subscribers, . . . being desirous of effecting a complete and permanent unity of interest between their distilleries, and also between their and other distilleries, and, preliminary to that purpose, wishing at once to accomplish such unity of interest between themselves, leaving details and the union of other distilleries to be arranged hereafter, have covenanted,” etc. Arti *277 cle 7 provides that “ a complete plan for such unity of interest and for the accomplishment of the other purposes herein contemplated shall be prepared at once, and in all other respects the purpose contemplated shall be consummated at once.” It is clear that on some things the minds of the parties had met, and on others they had not. The scheme or plan was not completed, and, until it was, there was no complete or final contract. Until then it was provisional and incomplete, and failure to agree upon the details or upon a complete plan would render all the preliminary agreements void. Lyman v. Robinson, 14 Allen, 242, 252. May v. Ward, 134 Mass. 127. Ashcroft v. Butterworth, 136 Mass. 511. Freeland v. Ritz, 154 Mass. 257. Appleby v. Johnson, L. R. 9 C. P. 158. Ridgway v. Wharton, 6 H. L. Cas. 238. The first cause of demurrer assigned is that the agreement between the defendants was incomplete, and as we are of opinion that this ground is well taken and is fundamental, it is not necessary to consider the other causes of demurrer. The entry must be, Judgment affirmed.