269 Mass. 317 | Mass. | 1929
In this action the plaintiff seeks to recover damages for breach of contract for the sale by the defendant to it of a specified quantity of leather. It appears from the judge’s charge that a memorandum of sale of the leather was made which called for its shipment in equal monthly instalments in June, July and August, 1927. The declaration alleges that the defendant has failed and refused. to deliver a portion of the leather, to the plaintiff’s damage. The answer of the defendant is a general denial, that the plaintiff was in default by failing to pay for part of the goods delivered to it, and that therefore the defendant was relieved from further delivery.
The memorandum of sale did not state who was to make deliveries or when payments were to be made. There was evidence that no other leather was in the market like that ordered and that no other leather was ever made like it. Evidence was introduced from which the jury could have found that it was the defendant’s duty to make deliveries of the leather to the plaintiff. The defendant, therefore, was not entitled to a directed verdict on the theory that the plaintiff was in default because of its failure to call for the leather at the defendant’s place of business.
There was evidence that part of the first instalment of the leather was received in June and the rest in July. Upon conflicting evidence the jury could have found that the parties agreed that payment for this instalment of leather was not due until August 15, 1927. They also could have found on the evidence that the plaintiff was not in default when in July, 1927, the defendant sold the leather, and that the defendant by that sale became liable to the plaintiff for a breach of contract.
In the charge the judge said: “So this very narrow
For breach of contract by the defendant the plaintiff was entitled to recover the difference between the contract price and the market value at the time of breach even if he made no purchase of leather then or thereafter. Evidence was introduced of the market value of. the leather at the time of breach. Tufts v. Bennett, 163 Mass. 398. Moffat v. Davis, 200 Mass. 452, 458. Barrie v. Quinby, 206 Mass. 259, 268. Cumberland Glass Manuf. Co. v. Wheaton, 208 Mass. 425, 434. There is nothing in Hall v. Paine, 224 Mass. 62, which conflicts with the law as applied
Exceptions overruled.