
    Lewis Grandy vs. Alvah Kittredge.
    By an agreement in writing, It. agreed to sell a lot of land to 0. at a certain price, and to advance 0. a certain sum of money to assist him in building a house thereon of a certain value, which 0. agreed to build. 0. drew an order in favor of G. on K., payable when O. should have fulfilled his part of the agreement, and requesting K. to charge the amount thereof as part of the sums to be advanced; and K accepted this order, provided 0. should perform his part oí !he agreement between them, but not otherwise. 0. built a house of a less value than had been agreed. In an action brought by G. against IC. on the acceptance, G. introduced evidence to prove that K. had waived this condition of the contract and acceptance; and K., to show the value of the house, gave in evidence receipts from 0. to K., and other orders paid by IC., more than equal-ling in amount the advances which IC. had agreed to make. The jury were instructed, that if the defendant had waived the condition of the contract as to the value of the house, G. could maintain his action, but not otherwise. It was held, that G. had no ground of exception to this instruction.
    This was an action of assumpsit on the following order, dated at Eoxbury, January 23, 1850, addressed to the defendant, and signed by A. M. & S. Osborn: “ Please pay to Lewis Grandy or order one hundred and fifty dollars, when we shall have fulfilled our part of the contract with you, which is dated September 24,1849, and the third payment mentioned in said contract shall be due from you, and charge the same to us as part of said third payment.” On the face of this order was the following, signed by the defendant: “ Accepted, provided Messrs. A. M. & S. Osborn shall perform their covenants and agreements according to their contract with me, dated September 24th, 1849; but not otherwise.”
    By the contract referred to in the order, the defendant covenanted and agreed to sell to A. M. & S. Osborn, a certain lot of land in Eoxbury; and that' they might erect buildings on said land; and to advance them $1,200, to assist them in erecting a wooden dwelling-house thereon, in three instalments, the last of which, of $500, to be paid when the house should be finished throughout, ready for occupancy, provided the house should be worth at least $2,400. And it was agreed, that to secure the defendant for such advances, the land and buildings should be and remain his property, until the price of the land, and the advances and interest thereon should be paid or secured by mortgage on the land. And the Osborns, on their part, covenanted and agreed to purchase the land, and pay therefor the sum of $1,142, with interest from the date of the contract, and to build a house on the land, worth at least $2,400, and to pay all advances made by the defendant, with interest; or, at their option, to give their note for the sum of $2,342, payable in three years from the 1st of October, 1849, with interest semiannually, secured by mortgage on the land.
    At the trial in the court of common pleas, before Hoar, J., it was admitted by the plaintiff that the Osborns had not erected a dwelling-house worth $2,400 upon the defendant’s land; but he contended, and offered evidence to prove, that the defendant had waived this condition of the contract and acceptance by his acts and declarations. The defendant offered evidence as to the value of the house, for the purpose of showing that it was worth much less than $2,400, and the estimates on one side and the other varied from $500 to $2,200. The defendant also put into the case divers receipts from the Osborns to the defendant, for payments made to them after the date of the order, as also two other orders paid by the defendant subsequent to the date; the whole amount of these receipts and orders was $1,494.19, of which $700 was paid upon the two first instalments due the Osborns under the contract. The plaintiff contended, that by making the payments of $794.19, over and above the $700, the defendant, so far as the plaintiff was concerned, was precluded or estopped from denying that the third payment under the contract and order was due; and that the plaintiff was entitled to recover at least the value of the dwelling-house over and above $700. But the judge instructed the jury, that if they were satisfied the defendant had waived the condition of the contract as to the value of the house, by accepting the house actually built as and for the house provided for in the contract, or otherwise waived it, the action might be maintained; otherwise, their verdict must be for the defendant. The judge also instructed the jury, that the receipts and orders for $794.19 did not preclude the defendant, so far as the plaintiff was concerned, from denying that the third payment was due; that the jury might regard them as evidence that it was due; but that if the defendant made advances to the Osborns which he was not bound to make, to aid them in getting through their contract, and in the hope that it would be completed, they would be merely gratuitous, and would not bind him to pay the plaintiff, if the contract never was completed.
    The jury returned a verdict for the defendant, and the plaintiff alleged exceptions to the instructions of the judge
    
      
      F. Hilliard, for the plaintiff,
    to the point that the payments to the Osborns were of themselves a waiver, so far as the plaintiff was concerned, and not mere evidence of waiver, cited Jackman v. Bowker, 4 Met. 235; Story on Bills, § 252; Pierson v. Dunlop, Cowp. 571; Mason v. Hunt, 1 Doug. 297.
    
      J. J. Clarke, for the defendant.
   Shaw, C. J.

It appears to us, that upon the main question, this case must be governed by that of Newhall v. Clark, 3 Cush. 376. The acceptance was strictly conditional, binding only upon the happening of a condition precedent, which never did happen. The instruction on the point of waiver was correct.

It is urged, that the judge erred in charging the jury that the plaintiff’s right to recover depended upon his having waived the condition of the contract, not of the acceptance. But the one depended on the other; the very ground of the defence is, that he waived the condition of the acceptance, by waiving or dispensing with the performance of the contract.

In the bill of exceptions it is stated, that the judge instructed the jury, that if the defendant had waived the condition of the contract, as to the value of the house, by accepting the house actually built, as for the house provided for in the contract, or otherwise waived it, the action might be maintained; otherwise not. This was sufficiently favorable for the plaintiff. In referring to the contract, which is made part of the case, it appears that this house was not building for the defendant, or on his account, or at his expense. He was in no event to be responsible for labor or materials. He owned the land, and, by the same contract, covenanted to convey it to the Osborns, at an agreed price; and as they proposed to build a house upon it, on their own account, he agreed to advance them $1,200 by way of loan, in three instalments, the last payable when the house should be completed. The defendant retained the legal title, with the value added to the realty by the erection of the house, as security for the price of the land and advances. He had no option to accept the house or not. It was built on his own land, and whether of the value or quality stipulated, and whether completed, or not, the land and house were all the security he had for the purchase money or his advances. The condition of the defendant’s acceptance, therefore, was a condition that the drawers should complete the house according to contract, and if there was no waiver of that condition, the plaintiff had no case.

Exceptions overruled.  