232 Mass. 504 | Mass. | 1919
The parties are not in controversy over the facts, and the question for decision is whether on the record a contract was entered into for breach of which the defendant is liable.
It appears that on July 25, 1916, the defendant’s agent negotiated a sale to the plaintiff of a carload of eight hundred cases of sardines, and the memorandum of sale as finally confirmed on July 27, 1916, contained the words “September shipment or no sale.” The plaintiff having demanded shipment in September, which the defendant refused to make, the present action is brought to recover the difference between the contract price and the market price the plaintiff was obliged to pay by reason of the defendant’s non-performance. The defendant contends, that, if conditions prevented it from shipping the sardines in September, there was no sale, and accordingly neither party became liable to the other for a breach.
It is urged that, the contract being void for uncertainty, it never became operative. But, even if the parties may have misapprehended its terms, or it may be obscure, or difficult of
By the words “September shipment or no sale,” the general purpose of the contract is not cut down. It is to be construed as meaning that shipment or delivery is to be made during that month to which the defendant’s performance is strictly limited or there is no binding sale. When this construction is adopted there is no repugnancy, and all the essential terms are given full effect. Perkins v. Hanks, 188 Mass. 120, 123. Washburn-Crosby Co. v. Home Ins. Co. 199 Mass. 463, 465. Curtis v. Ogden,. 217 Mass. 83, 86. While the failure to comply with the demands, made in August and in October did not constitute a breach, the defendant’s refusal to ship in September entitles the plaintiff to damages, the measure of which is not in dispute. The presiding judge therefore correctly refused to order a verdict for the defendant, and in accordance with his report judgment is to be entered for the amount stipulated, with interest from the date of the verdict.
So ordered.