Martin v. James Cunningham, Son & Co.

231 Mass. 280 | Mass. | 1918

B raley, J.

The evidence is not reported and, the questions of fact on which the first, second and third requests are predicated having been decided adversely to the defendant, nothing remained but the assessment of damages, the measure of which as presented by the fourth request is the only question raised on the record.

The plaintiffs having advanced $500, which is the amount awarded by the trial judge, contend, that the decision of the Appellate Division, that only $250 could be recovered, should be reversed. The defendant is the vendor, and, because of its material failure in performance, the plaintiffs, in whom title to the motor hearse never vested, had the right to rescind. Ballou v. Billings, 136 Mass. 307, Earnshaw v. Whittemore, 194 Mass. 187, 192, and cases cited. And the consideration having entirely failed, they are entitled to recover back the money paid on account of the contract price. Moore v. Curry, 112 Mass. 13. Graham v. Hatch Storage Battery Co. 186 Mass. 226, 230. Pope v. Allis, 115 U. S. 363. The clause relating to the price and mode of payment reads as follows: “A payment of Two Hundred & Fifty dollars accompanies this order, which is to be returned only if the order is not accepted. Two Hundred & Fifty Dollars in 30 Days. $500.00 dollars to be paid on arrival of said vehicle . . . and the balance in equal monthly notes of $150 each . . . with 6 per cent interest from date of arrival.”

It is urged by the defendant that the purpose of the "preliminary payment was to guarantee this amount if the order after acceptance was subsequently cancelled by the plaintiffs. But the contract, the printed form of which in blank was furnished by the defendant, is not so worded, and the plaintiffs are not shown to have been in default. The whole clause means, If your order is not accepted the money will be refunded, but if it is accepted you become bound to pay the stipulated price, and the money will be credited, leaving a balance, the amount of which is stated, to be paid in cash and notes. Griggs v. Moors, 168 Mass. 354, 360. The defendant having accepted the offer or proposal thereupon entered" on the performance of a contract under which the amount in dispute was to be applied in part payment of the entire price. Bishop v. Eaton, 161 Mass. 496, 499. Lennox v. Murphy, 171 Mass. 370, 373. If the payment is treated as in the nature of liquidated damages for anticipated non-performance, the answer is that the plaintiffs have fully performed the agreement. If upon acceptance it is treated as in the nature of a forfeiture, they must be deemed to have intended to make a gift of the amount to the defendant. The plaintiffs moreover, who have acted in good faith, instead of being made whole will lose one half of their money, while the defendant, although cast in damages, obtains an equivalent pecuniary benefit or enrichment; a result not to be reached unless the express wording of the instrument admits of no other construction.

The defendant also cites International Text Book Co. v. Martin, 221 Mass. 1, as decisive that this provision is to be deemed an independent covenant. But in that case the agreement expressly provided that when accepted it should not be subject to cancellation, and that in no event would the plaintiff, who had never made default, be required to refund any part of the money paid for the scholarship which he agreed and was ready to furnish.

We are of opinion for the reasons stated, that the decision of the Appellate Division should be reversed, and the report of the trial judge should be dismissed.

So ordered.