61 Mass. 516 | Mass. | 1851
Two questions are presented by the bill of exceptions in this case. The first arises on the refusal of the court to instruct the jury, that they were bound to presume a waiver by the plaintiffs of all right to recover damages for a breach of the contract declared on. We think that the judge was right in this refusal, and that the question of waiver was properly submitted to the jury on the evidence, as a question of fact, for their determination. Indeed, it may be laid down as a general rule, that the question, whether the evidence in any case establishes a waiver of any legal right by a party, is one of fact to be settled by the verdict of a jury. There may be cases, in which the facts are few and simple, and the acts or admissions of parties clear and unequivocal, when it would be the duty of the court to instruct the jury, that certain legal rights, upon which a party might otherwise have relied, have been surrendered and can no longer be insisted on; but these are cases where the law affixes certain consequences to acts of parties, when clearly and indisputably proved. So too in
But on looking into the facts proved in this case, we are very clearly of opinion that the instruction asked for by the defendant, even if it were the duty of the court to pass lefinitively on the question of waiver, was wholly unwarranted Dy the facts. It appears by the evidence, that the plaintiffs continued to fulfil their part of the special contract long after the defendants had omitted to perform theirs, and that, finally, after a demand on them by the plaintiffs to supply the castings, which they had agreed to furnish, and a refusal so to do, the plaintiffs ceased their efforts to complete the work, and commenced this action for the recovery of damages for the breach of the contract by the defendants. Upon these facts, the defendants contend that the contract was virtually rescinded and that the plaintiffs have waived all right to damages. But this position is wholly untenable. It would, in effect, be giving to the party that had broken his contract, the benefit of an entire release therefrom, merely because the party with whom he contracted, and who was not in fault, had forborne for a time to exact th'e strict performance of the bargain. The
The instruction of the court upon the question of damages remains to be considered. The rule has not been uniform or very clearly settled as to the right of a party to claim a loss of profits as a part of the damages for breach of a special contract. But we think there is a distinction by which all questions of this sort can be easily tested. If the profits are such as would have accrued and grown out of the contract itself, as the direct and immediate results of its fulfilment, then they would form a just and proper item of damages to be recovered against the delinquent party upon a breach of the agreement. These are part and parcel of the contract itself, and must have been in the contemplation of the parties when the agreement was entered into. But if they are such as would have been realized by the party from other independent and collateral undertakings, although entered into in consequence and on the faith of the principal contract, then they are too uncertain and remote to be taken into consideration as a part of the damages occasioned by the breach of the contract in suit. To illustrate this by the case at bar. The
Exceptions overruled.