246 Mass. 185 | Mass. | 1923
A bill of exceptions was seasonably filed in this case. It never was allowed and was dismissed under Rule 54 of the Superior Court (1915). Judgment was entered. A motion to vacate judgment was filed and allowed by consent and leave and the case was reported. It was agreed in open court that this motion was filed within three months after judgment. It is not contended that the execution was satisfied in whole or in part. No bond was filed. None appears to have been required by the court. G. L. c. 250, § 14. Shour v. Henin, 240 Mass. 240. Although there ought to have been a petition to set aside judgment entered as a separate proceeding, no objection can now be made to the allowance of the motion, since it was consented to. Maker v. Bouthier, 242 Mass. 20. The case is rightly before us on report. Leland v. United Commercial Travelers of America, 233 Mass. 558.
The action is in contract. There is evidence susceptible , of different inferences as to the terms of the contract upon which the plaintiff relied. But he finally testified that the letter of the defendant of December 24, 1920, expressed the arrangement as he understood it. The plaintiff therefore is bound by the contract as there set forth. Sullivan v. Boston Elevated Railway, 224 Mass. 405. The defendant being bound by his own written statement, that letter must be taken to be the contract.
The subject matter of the contract was the transfer to the defendant by the plaintiff of his right to sell “ Ledyard Certified Milk.” It appears that the plaintiff as producer had sold certified milk under this designation to one Boyd at nineteen cents per quart. The defendant had been selling milk which he produced to H. P. Hood and Sons, Inc., at
Since the contract between the parties was in writing, its construction was for the court. The judge instructed the jury that the contract, interpreted in view of the evidence, meant that, if the defendant was able to deliver certified milk |o Boyd according to arrangements as the jury might find them to have been already made between the defendant and Boyd, then the defendant was to pay to the plaintiff monthly one half the difference between nineteen cents and the amount the defendant then was getting from the Hood Company up to the amount of $1,000, that is, of the additional return so received and not of the profits, and that comparative profits were not to be considered. There was no error of law in this construction of the contract.
It might have been found as an inference from admitted facts that the existing arrangements between the defendant and Boyd were carried out to the satisfaction of both parties. The subject of these arrangements was the production of certified milk by the defendant and the purchase of it from him by Boyd. These arrangements were not anywhere specified in writing. It was for the jury to ascertain what they were and to decide whether they were carried out to the satisfaction of both parties from all the direct and circumstantial evidence. The quantities of milk sold, the amount of money paid, and the time during which their transactions continued, furnished reasonable basis for inferences favorable to the plaintiff in all these particulars.
It follows that a verdict in favor of the defendant ought not to have been directed, that the requests of the defendant for rulings were denied rightly, and that there was no error in the portions of the charge to which exceptions were taken.
Judgment on the verdict.
