217 Mass. 302 | Mass. | 1914
It is unquestioned, that delivery was free on board at the place where the bricks were to be used, and that the wall, after its erection, because of the variation in color, proved unacceptable to the supervising architect, and that the plaintiffs under their contract with the owner were obliged to demolish and rebuild it. The defendant, although promptly notified
But these requests could not be given. The contract was not confined to the correspondence. The letters, as the jury properly could find, were merely preliminary to the interview between the plaintiffs and the defendant’s representative, when the terms of sale were settled, and the order for the bricks given. It is in the evidence of what then took place that the contract must be sought. The testimony is irreconcilable, and the jury were to determine whom they would believe. If they accepted the plaintiffs’ statements, the defendant’s agent, having been informed that, as both sides of the wall would have to be faced, the facings necessarily would have to be of a uniform shade or appearance similar to the brick exhibited which the architect had accepted as of the required color, replied, that he knew what the requirements were and that the defendant would furnish the bricks accordingly. The order, thereupon given and accepted, the jury could say constituted a sale, where the plaintiffs relied on the statements of the seller, and the defendant impliedly warranted, that the bricks delivered in bulk should correspond with the sample. Atwater v. Clancy, 107 Mass. 369. Gould v. Stein, 149 Mass. 570. Borden v. Fine, 212 Mass. 425. St. 1908, c. 237, § 16. If these terms were found to constitute the contract, the evidence was plenary that the shipments did not conform to the sample in quality; the plaintiffs therefore could recover damages, and the fourth and fifth requests were inappropriate. Borden v. Fine, 212 Mass. 425, 427, and cases cited. , v
The admission in evidence of the plaintiffs’ ledger is not shown to have harmed the defendant, and no error appears in any of the rulings to which the defendant excepted. See St. 1913, c. 288.
The plaintiffs, although they prevailed, are dissatisfied with the rulings as to the measure of damages. By the acceptance of title the plaintiffs did not as matter of law release the defendant,
The judge, whose attention had been directed to the rule to be applied by the plaintiffs’ request, and in his rulings upon the exclusion of evidence, should have so instructed the jury. Bride v. Clark, 161 Mass. 130. But instead he charged, that the plaintiffs could recover only a sum equal to the difference between the value of bricks the color of the sample and the value of the bricks actually delivered. Nor was the error cured by the further instruction, that the jury might find the difference consisted in the expense to the plaintiffs to cull from the mass the bricks which they used in the reconstructed wall.
A majority of the court are accordingly of opinion that the defendant’s exceptions should be overruled, but the plaintiffs’ exceptions must be sustained.
So ordered.