115 Mass. 159 | Mass. | 1874
The plaintiff, in his first count, claims the agreed price of a quantity of lumber, which he says he delivered to the defendants and they refused to take. He adds a second count upon an account annexed for the price of the same lumber, and „ an amended declaration contains a count upon a written contract, with an allegation which, favorably interpreted, states the plaintiff’s offer to deliver the lumber contracted for and the refusal of the defendants to receive it.
It is not important to fix, if we could, the precise ground upon which the plaintiff at the trial sought to recover the contract price of all the lumber, because, upon any theory of his right, there must be a new trial.
The written contracts of the parties made at the same time are to be construed together as one contract containing mutual and dependent promises. Neither can enforce the agreement of the other without performance or readiness and an offer to perform on his part. The plaintiff, by his form of action, was required to prove full performance on his part. He sues, not for the breach
When the contract was made the lumber was in the log. The plaintiff sawed a part of it, and upon Ms offer to deliver that part, was told by the defendants that they had gone out of business and did not want and would not take the lumber. The plamtiff treated this as an absolute refusal and a renunciation of the contract, but went on and finished the sawing.-
The ordinary rule of damages for refusal to perform an executory contract for the future delivery of property when the title, from the nature of the property or the terms of the contract, is not changed until delivery, is the difference between the price agreed to be paid and the value of it, and not the full price of the goods. A party to an executory contract may stop its performance by an explicit order, and will subject himself only to such damages as will compensate the other party for being deprived of its benefits. Danforth v. Walker, 37 Vt. 239. Allen v. Jarvis, 20 Conn. 38. Laird v. Pim, 7 M. & W. 474. Cort v. Ambergate Railway, 17 Q. B. 127. The plaintiff, upon the defendants’ refusal, had the right then to treat the contract as broken. He seems to have- proceeded to some extent on this ground, for no tender was afterwards made or notice given to the defendants of an intention on his part to complete it. If, upon the facts stated, he had the right to go on and finish sawing and sue for goods bargained and sold, of which we express no opinion, yet it is impossible in any aspect to support the exclusion of the evidence offered to show that the lumber sawed was of a quality inferior to the requirements of the contract. If not admissible upon the question of the defendants’ ability and readiness to perform, it was material and competent as affecting the damages. The plaintiff was allowed to recover for unsound and defective lumber the price of sound lumber. This is equally wrong, vhether the plaintiff is entitled to recover as for goods sold and delivered, or is confined to the damages which necessarily followed the defendants’ abandonment of the contract.
Exceptions sustained.
