249 Mass. 257 | Mass. | 1924
The question of the propriety of the allowance of the motion for a new trial following the first trial is not before us. United Drug Co. v. Cordley & Hayes, 239 Mass. 334, 336. If it were, there can be no doubt of the propriety of that ruling. The reasons stated in the motion were, that the verdict was against the evidence, the law, and the weight of the evidence. The judge before whom the case
Both counts of the declaration are alleged to be for the same cause of action, and the remaining questions relate to alleged errors at the second trial. The plaintiff contended, that it was entitled to recover under the first count on an account annexed for one thousand one hundred pounds of yarn sold and delivered to the defendant, amounting to $2,860, while the second count, also for yarn sold, contains the further allegation, “ that the plaintiff made every effort and attempt to deliver to the defendant the balance of . . . eleven hundred . . . pounds of said yarn, but the defendant refused to accept the same, and therefore owes the plaintiff the sum of . . . $2,860 with interest.” The plaintiff’s agent on October 15, 1918, solicited and obtained from the defendant an order for “ 1000 lbs. Khaki yarn, style #1584,” and “ 200 lbs. Gray, style #1585,” to be shipped “ At once; ” the price to be paid for each pound and style of yarn appears in the plaintiff’s letter of acceptance October 17, 1918. The defendant on October 19, 1918, wrote the plaintiff, “ Will you kindly advise us when you are going to ship same, also where the goods are to be shipped from as when we placed this order with your salesman he could not give us the information as to the shipping point. Will you kindly furnish us the above so that we may give you shipping
The original order and acceptance which constituted the contract described two kinds of yarn, and different quantities of each kind. It called for an entire shipment of one thousand pounds of khaki yarn, and two hundred pounds of gray yarn. See Shohfi v. Rice, 241 Mass. 211. The orders were single, and each for a stipulated price, the yarn to be delivered at once. Barlow Manuf. Co. v. Stone, 200 Mass. 158, 160. Delivery was not to be made by instalments, but of the entire lot in each instance. The defendant was not bound to accept a smaller lot than the amount bargained for, and the plaintiff by its failure to deliver as required by the contract was in default, and could recover only for yarn shipped, and accepted, which was identical in description and quality with the yarn sold. Learned v. Hamburger, 245 Mass. 461, 472, and cases cited.
The judge states in his report that at the trial “ the plaintiff did not introduce any sample of the bulk of the eleven hundred pounds, nor was any of the eleven hundred pounds delivered to the defendant, nor was any evidence offered by the plaintiff of any delivery from the plaintiff’s place of business to defendant.” The contract was made in the State of New York, the laws of which relating to sales of goods not having been put in evidence, the case at bar is governed by the common law of this Commonwealth. Callender, McAuslan & Troup Co. v. Flint, 187 Mass. 104. It is plain there was no acceptance with knowledge by the defendant that the plaintiff would not perform its contract in full, and the sale was incomplete until delivery and acceptance of all the yarn. P. Garvan, Inc. v. New York Central & Hudson River Railroad, 210 Mass. 275. Learned v. Hamburger, supra. West End Manuf. Co. v. P. R. Warren Co. 198 Mass. 320, 326.
The report also states, that, the defendant having refused
We are of opinion for the reasons stated that the plaintiff under the present, or any amended declaration, cannot recover the purchase price, or the purchase price less such sums as were obtained by the resale. The plaintiff does not contend that it is entitled to damages on the ground that there has been a breach of the contract by the defendant, and under the terms of the report the entry must be,
Judgment for the defendant on the verdict.