312 Mass. 624 | Mass. | 1942
The plaintiff seeks to recover damages for the failure of the defendant to accept delivery of an automobile which the latter agreed in writing to purchase, at retail, for $1,105, the list retail price, less a discount of $100. The plaintiff, an “authorized dealer,” purchased the automobile from another dealer for $858.92, which was the “list wholesale price,” and when it was offered for delivery to the defendant on July 18, 1941, he refused to accept it. The plaintiff then endeavored to sell the automobile, and, on August 8, 1941, exchanged it with another dealer for one identical in all respects except as to color, and which it immediately sold to a customer for $1,105, together with $76 for a radio and heater. The plaintiff paid nothing for the exchange, it being “an even swap.”
The plaintiff, in answer to interrogatories, stated that the market or current price of the automobile in question at the time it claimed that it was ready for delivery, and also at the time it claimed it should have been accepted by the defendant, was $1,105. The trial judge, as requested by the defendant, instructed himself that, if the plaintiff was entitled to recover, the measure of damages was governed by G. L. (Ter. Ed.) c. 106, § 53 (3); that an automobile was a chattel that was commonly bought and sold in the market; that the measure of damages for failure to accept such an automobile was the difference between the contract price and the market “value” at the time stipulated for delivery; that a dealer in automobiles, chattels commonly bought and sold in the market, could recover in damages only the difference between the contract price and the market value at
The uniform sales act, G. L. (Ter. Ed.) c. 106, § 53 (3), provides that, if there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damage of a greater amount, shall be the difference between the contract price and the market or current price at the time when the goods ought to have been accepted, or, if no time is fixed for acceptance, then at the time of the refusal to accept. In Clark v. Henshaw Motor Co. 246 Mass. 386, decided in 1923, it was said, at page 388: “It is matter of common knowledge that an automobile is a chattel commonly bought and sold in the market. The measure of damages for failure to deliver according to the contract was the difference between the
We are of opinion that the words “market . . . price” in said § 53 (3), as applied to the facts in the case at bar, refer to the price at which automobiles are sold at retail, rather than to their wholesale price. See Marshall v. Clark, 78 Conn. 9, 11. It seems apparent that the trial judge, however, was of opinion that these words referred to the wholesale price. If there is any difference between the words “market price” and “market value” (see Bradley v. Hooker, 175 Mass. 142; E. Kronman, Inc. v. Bunn Bros. Inc. 265 Mass. 549, 553; Kingsley v. Spofford, 298 Mass. 469, 475; Commissioner of Corporations & Taxation v. Worcester County Trust Co. 305 Mass. 460, 462), nevertheless we are of opinion that the trial judge, in the use of the words “fair market value” in his finding, had in mind the words “market . . . price” appearing in said § 53 (3). His finding that the fair market value of the automobile was, in effect, the list wholesale price, was not warranted, and we are of opinion that it was error to deny the defendant’s sixth request. Rosenthal v. Green, 247 Mass. 153, 156.
The plaintiff relies upon the cases of Torkomian v. Russell, 90 Conn. 481, and Stewart v. Hansen, 62 Utah, 281, but we are of opinion that those cases do not state the rule in this Commonwealth that is applicable to the permissible findings in the case at bar. The Appellate Division was right in ordering judgment for the plaintiff for nominal damages. Centennial Electric Co. v. Morse, 227 Mass. 486, 491.
Order of Appellate Division affirmed.