194 Mass. 187 | Mass. | 1907
It was agreed at the trial that the findings of ■ the auditor, whose report forms part of the bill of exceptions, should be final upon questions of fact. After reciting these findings he thereupon ruled and reported that the plaintiff had failed to prove his title to the claim in suit, but if this ruling was wrong, he further ruled, that the defendants under their answer in recoupment had suffered damages in a larger sum than the plaintiff claimed, and found in their favor. The rulings refused asked for a reversal of the report of the auditor, whose rulings the plaintiff contends cannot be sustained on the facts reported.
We first consider the question of recoupment which comprises the merits of the controversy. The original contract contained no provision that the bottles should be made by union workmen, although the defendants subsequently insisted that there had been a preliminary understanding to this effect. In consequence of their assertion of this claim, and as a result of correspondence between the parties, a duly authorized agent of the plaintiff’s assignor indorsed upon the face of the contract that “ bottles called for on this contract are to be made by union workmen or this contract cancelled.” This indorsement must be deemed an additional agreement to be treated as a modification of the existing contract, which as thus modified is supported by the original consideration. Thomas v. Barnes, 156 Mass. 581. Drew v. Wiswall, 183 Mass. 554, 556. Taylor v. Finnigan, 189 Mass. 568, 574, 575.
The contract as finally completed being limited to bottles of this description, it was undisputed that after repeated demands such bottles were not furnished, and the vendor informed the defendants that compliance was impossible. In reply to a suggestion that they cancel the contract, the defendants, while recognizing their right of termination, promptly declined to exercise it, and insisted upon performance, with a further claim for damages already suffered by reason of the failure to deliver the goods for which they had bargained. Hubbardston Lumber Co. v. Bates, 31 Mich. 158, 169. .They also directed that their moulds, which had been in the possession of the vendor, should be transferred to another manufacturer, and this transfer was made accordingly. It is plain that this failure to comply with the contract was the cause of its abandonment by the defendants, upon whom by
The order transferring the moulds could not be deemed a breach by the defendants which destroyed their right to damages, as it was not given until the vendor had notified them of its inability to fulfil the contract. Upon receiving this information they were riot required to allow the moulds to remain, but were at liberty to use them in such manner as they considered the prosecution of their business demanded. Minckley v. Pittsburgh
As the plaintiff’s assignor could recover nothing, the further question in regard to the validity of the assignment under which the plaintiff claims title becomes immaterial. See England v. Dearborn, 141 Mass. 590; New England Ins. Co. v. Wing, 191 Mass. 192. Compare Hamilton v. McLaughlin, 145 Mass. 20, 22, Williamsburg Ins. Co. v. Frothingham, 122 Mass. 391, 394, and Murphy v. Welch, 128 Mass. 489, 491.
Exceptions overruled.