271 Mass. 208 | Mass. | 1930
This is an appeal by the defendant from the denial by the Appellate Division of the Municipal Court of the City of Boston of the petition to establish the truth of its report, and from the final decision, “report dismissed.”
The action is one of contract in which the plaintiff seeks to recover damages from .the defendant for a breach of a written contract to lighter and store certain cement. The case was tried before a judge of the Municipal Court and a finding was made in favor of the plaintiff. Thereafter, within the time allowed, the defendant filed a motion for a new trial. This motion was allowed on certain conditions, which the defendant refused to accede to. Thereupon the defendant filed a “Request for. Report” and a “Draft Report.” The report was disallowed by the trial judge.
The contract, for the breach of which the plaintiff was allowed damages, reads as follows: “This agreement made this 11th day of April, A. D. 1927, by and between The Rendle Corporation of Chelsea, Mass, of the first part, and John R. Hughes & Sons of Charlestown, Mass, of the second part, witnessth: That the party of the first part, for the consideration hereinafter mentioned, agrees with the party of the second part to perform in a faithful and workmanlike manner, the following specified work, viz.: To lighter all cement arriving at the Army Base during the year 1927 intended for the Boston Elevated Railway, to their George Street .Yard at Charlestown and store the same in their cement shed thereon. The party of the first part agrees to assume .all responsibility for the delivery in good condition of all cement delivered in good condition and stored on their lighter. The party of the second part agrees to notify the' party of the first part- fourteen day's prior to the expected arrival of a shipment at the Army Base. It is further agreed between both parties that a bag of cement shall be assumed to weigh ninety-five and one half (95|) pounds. And the party of the second part agrees with the party of the first part, in consideration of the faithful performance of the above specified work, to pay to the party of the first part, the sum of eighty-five cents (85¡¿) per ton of two thousand pounds (2000#) as follows: Payment in full within five days
At the trial there was evidence that the first load of cement under this contract was delivered by the defendant at the George Street yard of the Boston Elevated Railway in the period between April 15 and April 23, 1927; that the last of the first shipment was delivered on the twenty-third day of April, 1927; that the amount due the defendant under the terms of the contract for this first shipment was $568.23; that on April 22, 1927, the plaintiff paid the defendant $400, leaving a balance of $168.23 unpaid on the first shipment and due within five days from April 23, 1927, the date of the final delivery of that shipment; that on or about April 29, 1927, the plaintiff sent a written notice, in accordance with the terms of the contract, notifying the defendant of the approximate date of the arrival at the Army Base of the second shipment; that the shipment arrived May 3, 1927; that after the receipt of the notice, and before the arrival of the second shipment, the plaintiff, the president of the defendant corporation (one Rendle), and the secretary conferred; that Rendle told the plaintiff he had failed to keep the terms of his contract in that he failed to make payments in accordance with the terms of the contract, and that the corporation would not deliver any more cement for him.
At the close of the trial and before final arguments, the defendant requested the trial judge to rule: “If you find that the plaintiff, in accordance with the terms of the written contract, failed or neglected to pay in accordance with the terms of the contract, then that failure was a breach of the contract by the plaintiff and the defendant was entitled to cancel the remaining part of the contract.” The trial judge refused this request “on the ground that the breach under the circumstances was not serious enough to justify defendant’s refusal to perform.”
The plaintiff contends, on the authority of A. K. Young & Conant Manuf. Co. v. Wakefield, 121 Mass. 91, Barlow Manuf. Co. v. Stone, 200 Mass. 158, Mark v. Stuart-Howland Co. 226 Mass. 35, 43, and Fairfield Holding Corp. v. Souther,
Assuming that the contract was in its nature indivisible, the important question for decision is, Did the evidence warrant the finding of fact made by the judge? Or, put in another way, Was the failure of the plaintiff to pay $168.23 of the $568.23, which the contract in express terms provided should be paid “in full within five days from final delivery of each shipment at the Boston Elevated Railway Yard,” a breach going to the root of the contract, and a breach so important as to warrant the defendant in refusing to deliver the remaining part of the cement? We think the failure of the plaintiff to pay so large a part of the total sum payable and due was not a trifling breach of the contract but was a substantial one which threw doubt upon the plaintiff’s ability or disposition to make payments when due upon the defendant’s deliveries of subsequent shipments. And we further think that the default of the plaintiff was so serious and so far connected with the substance or consideration of the contract as to justify the defendant in refusing to be further bound by it. National Machine & Tool Co. v. Standard Shoe Machinery Co. 181 Mass. 275. Eastern Forge Co. v. P. & F. Corbin, 182 Mass. 590, 593. Dudley v. Wye, 230 Mass. 350, 355.
The order, “report dismissed,” is reversed and judgment is to be entered for the defendant.
So ordered.
