272 Mass. 49 | Mass. | 1930
This case was submitted to the jury on four counts, each setting out a separate contract in writing between the plaintiff and defendant. By each contract the plaintiff was obligated to paint and maintain, at many different locations to be approved by the defendant, outdoor advertising signs for a period of one year from “average date of completion” and to repaint the same at “the end of each six month period”; and the defendant was obligated to pay to the plaintiff specified monthly rentals “payable on or before the tenth of each month of billing.” In each of these counts the plaintiff alleged that he “did in pursuance of said agreement paint said signs and maintain the same in accordance with the terms of the agreement, but that the defendant failed to pay the monthly rentals after the expiration of a few months.” Other counts not submitted to the jury need not be considered.
The questions of law which arose as the case was tried and submitted to the jury first will be considered apart from those based on variance between the proof and the alie
There was evidence tending to show that the defendant failed on each contract to make the payments required of it, so that at the end of the first “six month period” there was overdue an aggregate of about $3,000; that at about that time there was conversation between the plaintiff and representatives of the defendant to the effect that the plaintiff said that he could not repaint the signs unless and until the arrearages for rentals due under the contracts were paid, and that the cost of repainting would be about the amount thus overdue; that he could not finance the work unless he was paid the money due him; and that it was said in behalf of the defendant that it was not in any position to pay and that, if the plaintiff would go ahead and do the work, later on it “would probably be able to pay.” There seems to have been little if any dispute as to the failure of the defendant to make the payments. The testimony above narrated, although in some respects contradicted, might have been found to be true.
In these circumstances, it is apparent that the obligation of the defendant to make the monthly payments was an essential and inducing feature of the contracts, and that the defendant’s breach in this particular went to the root of the contracts. In such state of affairs justice did not require the plaintiff to incur the considerable expenditures resting on him to repaint the signs, but the defaults of the defendant were so serious and so intimately connected with the substance of the contracts as to justify the plaintiff in refusing to go on with them or to be bound further by them. On this point the case is within the au
It appears from the charge of the judge that the course of the trial was that there was no dispute that the contracts were made; that the signs were originally painted and were maintained in the locations required by the contracts, and that the defendant had failed to some extent to make the payments required of it, and that the payments actually made were not much in dispute; that the real controversy of fact related to occurrences between the parties at the conversations at or about the time of the expiration of the first “six month period,” when it became the duty of the plaintiff under the contract to repaint the signs. The positions taken by the parties at the trial appear to have been stated in the charge adequately and fairly. No exception was saved and, as we understand it, no argument has been addressed to us, on this point.
The instruction to the jury was right to the effect that the plaintiff could not recover if he had done only part of what he agreed to do, unless he was excused in some way by the defendant from doing that which he was required by the contract to do but had failed to do; and that failure by the defendant to do that which was required of him, occurring prior to the time when the plaintiff was required to do something under the contract which he failed to do, would constitute such excuse, and that the vital question to be decided was whether the plaintiff had performed all that he was required to do prior to the failure to perform on the part of the defendant. The importance of determining which breach of contract occurred first, whether that of the plaintiff or that of the defendant, was impressed upon the jury. The first eight requests by the plaintiff for rulings of law were, adapted to the evidence, were substantially correct, and there was no error in granting them, and the charge as amplified statements of them was correct.
The rule as to damages embodied in substance in the plaintiff's ninth request for a ruling, and adopted by the judge, was to the effect that, if the jury found that the plaintiff was excused from repainting the signs and otherwise completing the contracts by the conduct of the defendant and was justified in treating and did treat the contracts as broken by the defendant, and did nothing inconsistent with that position, then he was entitled to recover as damages the difference between what he would actually have received if the contracts had been fully performed by him and what he did in truth receive, after taking into account as a deduction from the difference thus ascertained whatever benefit came to him by reason of being relieved from fully performing the contracts. A plaintiff in an action for breach of contract is entitled in general to damages sufficient in amount to compensate him for the loss actually sustained by him, and to put him in as good position financially as he would have been in if there had been no breach and he had completed the contract. He may not insist upon extraordinary or unforeseen elements of damage, but only such as flow according to common understanding as the natural and probable consequences of the breach and such as may be presumed to have been in the contemplation of the parties at the time the contract was made. The rule adopted in the ninth request and in the charge conforms to this test and is in accord with or fairly deducible from adjudicated decisions. Parker v. Russell, 133 Mass. 74. Leavitt v. Fiberloid Co. 196 Mass. 440, 446. Boyden v. Hill, 198 Mass. 477, 486-487. Dahlstrom Metallic Door Co. v. Evatt Construction Co. 256 Mass. 404, 416-417.
The plaintiff in each count of his declaration alleged in substance that he performed the contracts on which his action was founded by painting and maintaining the signs
The defendant seasonably raised this question of variance between the allegations and the proof by numerous requests for rulings, all of which were denied.
It seems to us on the record that the case was fully and fairly tried by both sides on the issues on which it was submitted to the jury and on which the plaintiff has been found entitled to prevail, and that amendments well might be allowed to the declaration in order to make it conform to the case established by proof. Pizer v. Hunt, 253 Mass. 321. No such amendment has been offered. That question has not been argued and we do not feel like deciding it now.
So ordered.