185 Mass. 251 | Mass. | 1904
The original declaration contained three counts, the first being on an account annexed apparently as
The exception to the allowance of the amendment is not argued, and therefore in view of its nature we consider it waived.
The record discloses no evidence to establish the defence of fraud. The contract when made was binding upon the defendant, and it does not appear that by rescission or otherwise she has been released from it. She must be held, therefore, and the only remaining questions relate to the assessment of damages. Upon this question the defendant requested the judge to rule (1) that the plaintiffs could recover only nominal damages, (2) that they could recover “ only the actual expense made before the order was countermanded,” and further (3) that “ the measure of damages is the difference between the market value at the time and place of delivery and the contract price, and no evidence having been introduced of that difference, the court can award nominal damages only.” A short but decisive answer
While the evidence as to the market value at the time and place of delivery was slight, still we cannot say as matter of law that it did not justify the finding made by the judge.
Exceptions overruled.