Lafrance v. Desautels

225 Mass. 324 | Mass. | 1916

Carroll, J.

This action is for the refusal to deliver paving blocks sold to the plaintiffs.

There was evidence that the defendant informed the plaintiffs that he was the owner of “all the blocks Denault was cutting,” saying, “Denault was practically turning the blocks over to him for his pay-roll.” An agent of the defendant visited the quarry every Saturday to ascertain the number of blocks cut during the week; a bill of sale was then made and the number of blocks was entered in a book by the defendant, the book showing that at the time of sale the defendant had at the Denault quarry 56,420 blocks. He wrote in the book: “July 8, Sold all my pavings to Lafrance Brothers at $42. per thousand,” which memorandum Joseph Lafrance, one of the plaintiffs, signed.

On July 13, 1914, after the plaintiffs had removed 2,400 blocks, they were prevented by the Denaults from taking away what remained. Between July 8 and July 13 the Denaults carried off about 10,000 blocks. On July 10 the defendant said to the plaintiffs, “the Denaults claimed to have some blocks that were not covered by the sales which they had made,” and asked the plaintiffs to allow Denault to take away a part of the blocks sold to them, so that Denault might fill an order from the city of New Bedford. This the plaintiffs refused. It was also in evidence that at this time the defendant told the plaintiff, Joseph Lafrance, that he was going to let the superintendent of streets of New Bed-ford have some blocks; and in reply to Lafrance’s statement “I think I bought those blocks and I should keep them,” the defendant said, “Why, only 10,000 blocks; that would not be a great amount for you.” Lafrance also testified that he said to the defendant at this time, “I met young Denault this morning, and he told me that they were going to cart the blocks away;” the defendant knew the next morning that Denault was taking the blocks from the quarry. When the defendant’s attention was called to the fact that Denault had taken away more blocks than he (Denault) claimed to own, the defendant said: “You see I can’t sell you those blocks. . . . Don’t you see I can’t stop them from carting, because there is an agreement.” From that time to July 20, the city of New Bedford received from the Denault. quarry 18,000 paving blocks for which the defendant was paid.

As there was evidence of the sale and of the refusal to deliver the blocks, it could not be ruled, as matter of law, that the plaintiff could not recover.

From the defendant’s knowledge that the plaintiffs were prevented from removing the material and his neglect to hinder it, his request for some of the blocks sold for his own use, and from the number of blocks taken from the quarry and sold by him to the city of New Bedford, the jury could find that the defendant approved and ratified the acts of Denault. The first request was properly refused. Cohen v. Jackson, 210 Mass. 328.

The defendant in his second request asked the judge to rule, “If no proper demand for the delivery of the paving blocks, in accordance with the terms of the contract, was ever made by the plaintiffs to the defendant, they cannot recover.” Assuming that under the terms of the contract a demand was essential, from the fact that the defendant practically admitted he did not own the blocks sold when he said, “I can’t sell you those blocks,” and by his actual sale of them to the city of New Bedford, the jury could find that the plaintiffs were excused from giving any notice. The judge was therefore right in refusing this request.

The ninth request was given in substance when the jury were told that the Denaults had a right to sell to the city of New Bed-ford all the paving blocks they had on hand at the quarry on July 8, 1914, above the number of 56,420 which had been sold by the defendant to the plaintiffs.

The defendant now argues that the action is not for the breach of a sale of designated blocks, but is founded on the breach of an executory contract to sell a number of blocks. The parties went to trial on the first count in the declaration, which sets out an executory contract. No question of pleading, however, was raised at the trial. The attention of the judge was not called to this point, and under the general request that upon the evidence and the law the plaintiff could not recover, this objection was not suggested. The trial proceeded on the ground that there was an actual sale, and not an executory contract to sell. Therefore, the question now argued by the defendant is not open to him. Oulighan v. Butler, 189 Mass. 287.

The judge said to the jury, at the request of the defendant, “As long as the defendant was willing, prepared and able to carry out his contract with the plaintiffs, he had a right to sell all the paving blocks he wanted to, either to the city of New Bedford or to other parties;” and added, “That is true ... so long as he was prepared and willing to carry out his contract.” In view of this, the defendant was not harmed by the refusal to give the twelfth request or by what was said in reference to the eleventh request.

When instructed on the question of damages, the jury were told that the- market value of paving blocks in Dartmouth could be determined by considering their market value in Fall River or New Bedford, less the cost of removing them from the quarry to the cities where there was a market for this material. We see no error in this instruction. It might be inferred from all the evidence that paving blocks for city streets were not used to any great extent in the town of Dartmouth, and their value could be ascertained in the manner pointed out by the judge. National Coal Tar Co. v. Malden & Melrose Gas Light Co. 189 Mass. 234. Barry v. Cavanaugh, 127 Mass. 394. Hanson & Parker, Ltd. v. Wittenberg, 205 Mass. 319.

Exceptions overruled.