172 Mass. 466 | Mass. | 1899
This is an action for breach of a contract to build for the plaintiff, a i-etail dealer, three hundred bicycles of a certain kind “ to be delivered ... as said Johnston may direct, from January 1,1895, to July 1,1895.” The defendants broke the contract, and the plaintiff was obliged to cancel most of the orders which he had received, amounting in all to more than three hundred. The plaintiff was to pay the defendants fifty dollars a bicycle. The retail price, as fixed by subsequent agreement between the plaintiff and defendants, was one hundred and fifty dollars. This, or near it, was the price on the orders. The auditor, and the judge of the Superior Court after him, ruled that the plaintiff could recover only nominal damages, although, if the loss of the orders would not be too remote, his damage was found to be upwards of fourteen thousand dollars. The plaintiff excepted.
This court has gone a good way in refusing to allow profits to be recovered for, on the ground that they were too remote. Todd v. Keene, 167 Mass. 157. Noble v. Hand, 163 Mass. 289. But
It is true that the agreement as to the retail price was made in January, 1895, and that the orders came in from December, 1894, to June, 1895, while the contract was made in November, 1894. But we presume that the defendants would not care to argue that there was any unexpected rise in retail market values between November and January. Moreover, if the liability were made out in other respects, it might be held that the defendants by their contract adopted' whatever might turn out to be the retail price at the time and place of delivery. Shaw v. Nudd, 8 Pick. 9. Quarles v. George, 23 Pick. 400. Harvey v. Connecticut & Passumpsic Rivers Railroad, 124 Mass. 421, 425. Sedg. Damages, (8th ed.) §§ 737, 738.
The only difficulty in the way of- the proposed measure of damages which impresses us is, that, when the defendants made their contract, it was not certain in a commercial sense that the plaintiff could sell what he ordered. His bicycle seems to have been more or less of an experiment. But as remoteness, that is to say, whether under given circumstances upon an ascertained contract, certain damages are within the scope of the risk undertaken, is always a question of law; (Hobbs v. London & South
It will be understood that the contracts made by the plaintiff are not recovered for as such. But the orders, covering as they did more than the number of bicycles to be built by the defendants, coupled with the above mentioned agreement as to the retail price, áre evidence of the value of the wheels. France v. Graudet, L. R. 6 Q. B. 199, 204. If, as we understand, the orders were contracts, conditional only upon being performed in time, it does not matter whether they were good or bad under the statute of frauds. They are equally instructive as to value either way, if they were mercantile agreements intended to be carried ou^.
Exceptions sustained.