Clark v. Henshaw Motor Co.
246 Mass. 386
Mass.
1923
Check Treatment
Rugg, C.J.

This is an action to recover compensation for breach of a contract to deliver to the plaintiff in February, 1920, an automobile of designated make. The plaintiff offered to show that, having in his employ several salesmen using that make of automobile, he was deprived of the services of one of them and thereby lost substantial profits from his business by reason of not having the automobile delivered according to the contract. This offer of proof was excluded rightly.

*388It 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 contract price and the market value at the time stipulated for delivery. G. L. c. 106, § 56(3). F. W. Stock & Sons v. Snell, 240 Mass. 427, 431. Hall v. Paine, 224 Mass. 62, 65. No exceptional circumstances are shown which render applicable any other rule of damages.

Loss of profits on an independent business, in a subsidiary connection with which the automobile was intended by the plaintiff to have been used, is too remote to have any relation to refusal to deliver the automobile according to contract. Such loss does not directly and naturally in the ordinary course of events result from the breach of such a contract. It cannot be thought that any such element of damages was included in the nature or terms of the contract. There is nothing to indicate that the special use to which the plaintiff intended to put the automobile was made known to the defendant. Bartlett v. Blanchard, 13 Gray, 429. National Coal Tar Co. v. Malden & Melrose Gas Light Co. 189 Mass. 234, 237. Curtis v. Boston Ice Co. 237 Mass. 343, and cases collected at page 350. McLaren v. Marmon-Oldsmobile Co. 95 N. J. L. 520. Cases like Randall v. Peerless Motor Car Co. 212 Mass. 352, 380, 381, and Orbach v. Paramount Pictures Corp. 233 Mass. 281, where loss of prospective profits in business have been held recoverable, are too clearly distinguishable to require discussion.

The offer to show the rental value of an automobile during the period of nondelivery was rightly excluded for the same reasons. Moreover, it did not appear that the plaintiff hired any automobile.

The plaintiff deposited with the defendant $50 at the time- of making the contract. The jury were instructed that, if the defendant had made a breach of the contract, the plaintiff was entitled to recover at least $50. Other appropriate instructions as to damages were given. A verdict for $1 was returned. The plaintiff thereupon filed a motion for a new trial on the grounds that the verdict *389was contrary to the law and to the instructions of the court, and inadequate. The defendant then filed a stipulation to the effect that judgment might be entered for the plaintiff for $51 and costs. The court thereafter overruled the motion. To this the plaintiff excepted.

The trial judge has no authority after the separation of the jury to add any sum to the verdict of the jury. Shanahan v. Boston & Northern Street Railway, 193 Mass. 412. Minot v. Boston, 201 Mass. 10. Kennon v. Gilmer, 131 U. S. 22, 29. That was not what was done in the case at bar. After the filing of the stipulation as to judgment by the defendant, it became plain that the amount to be recovered by the plaintiff would be that which the jury had determined to be due him together with the deposit originally made by him. The amount in dispute between the parties then became infinitesimal provided force were given both to the verdict of the jury and to the instruction given by the court. The judge was not required as matter of law under such circumstances to grant a new trial. Boyden v. Moore, 5 Mass. 365, 371. Abbott v. Walker, 204 Mass. 71,74. Fallon v. Clifton Manuf. Co. 207 Mass. 491, 496. Sears v. Worcester, 180 Mass. 288. Lufkin v. Hitchcock, 194 Mass. 231. The granting of a motion for a new trial commonly rests in sound judicial discretion. Ryan v. Hickey, 240 Mass. 46. Berggren v. Mutual Life Ins. Co. of New York, 231 Mass. 173, 176. The refusal to grant the motion in the case at bar shows no abuse of discretion. G. L. c. 231, § 132.

Exceptions overruled.