213 Mass. 23 | Mass. | 1912
The stipulations of the parties to the contract were mutual and dependent, and, if after it had been partially executed the defendant by discharging the plaintiff made further performance impossible, he is liable in damages, unless the discharge could be justified on the ground of the plaintiff’s defaults. Hodgkins v. Moulton, 100 Mass. 309. Hapgood v. Shaw, 105 Mass. 276. Earnshaw v. Whittemore, 194 Mass. 187, 192. Accordingly the question at the trial was whether the alleged omissions put in evidence by the defendant were a sufficient justification. It is settled that, while inadvertent or unimportant departures would not defeat the right of recovery, the plaintiff became bound to a substantial performance in furtherance of the objects intended to be accomplished. Eastern Forge Co. v. Corbin, 182 Mass. 590, 592. National Machine & Tool Co. v. Standard Shoe Machinery Co. 181 Mass. 275.
The plaintiff, who had been engaged in taking contracts for lathing houses, and who seems to have acquired quite a patronage, which the parties intended should be transferred as far as possible to the defendant, engaged “to use his best efforts to further the interests of, to obtain work and contracts for, and to turn over all work that may come to him to, the said party of the first part.” A general course of conduct which would enure to the defendant’s benefit is here prescribed in unambiguous words. The defendant, never having been informed to the contrary, had the right to assume from the plaintiff’s previous experience, that when placed in supervision of work contemplated by their agreement his business qualifications were sufficient to enable him to act efficiently. And the plaintiff, although testifying that he had faithfully complied with his obligations, does not contend that the defendant’s orders, which the evidence tended to show he had not properly executed, or declined to execute because of inability to read or to write, imposed duties for the performance of which he had not contracted.
A motion for a new trial is addressed to the discretion of the court, and unless rulings of law are made at the hearing the denial of the motion affords no ground of exception. Lopes v. Connolly, 210 Mass. 487.
The order of the judge comes within the rule, and it follows that on each branch of the case the exceptions must be overruled.
So ordered.