336 Mass. 573 | Mass. | 1958
In this action of contract for breach of a written agreement the declaration alleges that the defendant (Filene’s) committed a breach by discontinuing its cleansing business and so bringing about a forced liquidation of the plaintiff (Model Plant). There is a declaration in set-off for rent, lost articles, and the cost of restoring premises owned by Filene’s and occupied by Model Plant. The case was first heard by an auditor, findings of fact not to be final, who found substantially in favor of Filene’s. There were findings, among others, that the financial condition of Model Plant had been such that it could not have supplied the
Model Plant excepted to the direction of the verdict on the declaration in set-off. There was no error. The auditor’s report was a prima facie case, and there was no evidence in contradiction of the report with respect to the declaration in set-off. Cook v. Farm Service Stores, Inc. 301 Mass. 564. Wade v. Buchanan, 306 Mass. 318, 321-322. Guertin v. Trustees of New York, New Haven & Hartford Railroad, 322 Mass. 91, 92. L. W. Severance & Sons, Inc. v. Angley, 332 Mass. 432, 437. See G. L. (Ter. Ed.) c. 221, § 56.
Model Plant argues exceptions to the denial of its third and sixth requests for instructions. Filene’s argues that, as the jury must have found either that Filene’s had not broken the contract or that Model Plant was not damaged or both, these requests are no longer material. However that may be, neither request could have been given in the form presented.
■ The third request was, “If the jury finds that the defendant discontinued its dry cleaning service to its customers, then it is guilty of a breach of the written contract declared upon and the plaintiff is entitled to a judgment for damages.” But the judge had already given requests numbered 1 and 2, which were: “1. The provisions of the contract, when interpreted in the light of the circumstances and purposes to be accomplished, mean that the defendant was under an obligation to carry on the dry cleaning service rendered to its customers during the life of the contract and
Request numbered 6 was, “If the jury finds that the defendant breached the contract and by such breach caused the plaintiff unavoidably to lose its machinery, then one of the elements of damage to be assessed against the defendant is the fair market value of the machinery at the time of the breach.” As to this, the court said: “Of course, that’s a little different than I gave it to you because I can’t say that he caused the plaintiff unavoidably to lose its machinery because the mortgagee had the situation in his hands. The mortgage was in default, he could foreclose any time he wanted to.” The effect of this was to give the request except for the word “unavoidably,” the omission of which, if anything, was favorable to Model Plant. The judge’s treatment of the request was, in our opinion, exactly right.
Exceptions overruled.'