236 Mass. 471 | Mass. | 1920
The evidence was amply sufficient to justify a finding by the jury that in June, 1917, the plaintiff paid to the defendant $426, in consideration of his agreement to transmit
At the close of the evidence, the defendant duly moved that a verdict be ordered in his favor, and also requested the trial judge to instruct the jury that “upon all the evidence the verdict should be for the defendant.” He excepted to the denial of his motion and to the refusal of his request. The case was submitted to the jury, who found for the plaintiff.
The exceptions must be overruled. A wrongful and entire failure by the defendant to perform the contract authorized its rescission by the plaintiff, and entitled him to recover the amount paid, upon a count for money had and received. The plaintiff was not bound to affirm the contract by an action for damages suffered by reason of the defendant’s non-performance. Brown v. Harris, 2 Gray, 359. Minturn v. Warren Ins. Co. 2 Allen, 86, 89. Ballou v. Billings, 136 Mass. 307. R. H. White Co. v. Remick & Co. 198 Mass. 41, 47. Runkle v. Burrage, 202 Mass. 89, 99. Martin v. James Cunningham, Son & Co. 231 Mass. 280.
Exceptions ovemded.