By Gen. Sts. c. 129, § 2, a plaintiff is allowed to omit all averments which the law does not require to be proved, and to set forth the substantive facts necessary to constitute the cause of action with substantial certainty, and without unnecessary verbiage. In declaring on a written instrument, he may, among other methods of declaring, set out a copy, with proper averments to describe the cause of action.
The plaintiff in this action declares on a contract not under seal, and annexes a copy. But as the copy is signed by the defendant only, and purports to be merely his agreement with the plaintiff, and as the declaration merely avers that the parties entered into that contract, there is no proper averment of a consideration. It is true that the contract of the defendant states certain things that the plaintiff has agreed to do; but it contains no promise of the plaintiff to do them, and there is no averment that he made such promise. His promise, if it constituted the consideration, should have been set forth with substantial certainty ; for it is one of the substantive facts necessary to be proved.
If the consideration were set forth, the declaration would still be defective. The defendant’s promise is not absolute, but was to be performed only upon the organization of the coal *311company, the issuing of certificates, the sale of a certain amount of the stock, and the collection of payment therefor by the plaintiff. It is not averred that any of these conditions were performed. It is alleged that the defendant has disabled himself from performing the contract, and has prevented the plaintiff from performing the same; but no substantive act of the defendant is set forth in support of either of these allegations. The acts done by the defendant are the matters to be proved, and whether they operated to disable the defendant from performing his contract, or to hinder the plaintiff from performing his contract, is a conclusion of law. The first and third causes of demurrer, being well alleged, are sustained.
Hoar, J. did not sit in this case.