11 Mass. App. Ct. 967 | Mass. App. Ct. | 1981
The parties in this case executed an agreement dealing with the possible develop
The plaintiff brought an action for breach of the contract, seeking damages and certain other relief. The complaint alleged in pertinent part that the defendant had not conducted the tests in a proper manner and that it had violated the agreement by seeking to increase the price for the prototype beyond that specified. The defendant’s motions for a directed verdict at the close of the plaintiff’s opening, at the end of the plaintiff’s case, and at the close of all the evidence, were denied. The jury returned a general verdict for the defendant. The plaintiff alleges error in the judge’s instructions on the question of breach, in his refusal to give certain requested instructions on damages, and in the exclusion of certain evidence. We affirm the judgment.
1. Although the defendant has not appealed from the denial of its motions for directed verdict, it may nevertheless raise any ground asserted below in support of the judgment in its favor. See Flower v. Billerica, 320 Mass. 193, 196 (1946); Boston Police Patrolmen’s Assn. v. Boston, 367 Mass. 368, 373 (1975); Boston Edison Co. v. Boston Redev. Authy., 374 Mass. 37, 43 (1977). We believe that the evidence taken in the light most favorable to the plaintiff (Raunela v. Hertz Corp., 361 Mass. 341, 343 [1972]; Alholm v. Wareham, 371 Mass. 621, 627 [1976]) was insufficient to warrant a conclusion that the defendant had committed a breach of the contract; as a result, a verdict should have been directed for the defendant at the close of the plaintiff’s case. “The general rule is that when performance under a contract is concurrent one party cannot put the other in default unless he is ready, able, and willing to perform and has manifested this by some offer of performance.” Leigh v. Rule, 331 Mass. 664, 668 (1954). See Hapgood v. Shaw, 105 Mass. 276, 279 (1870); George v. Goldman, 333 Mass. 496, 497 (1956); Mayer v. Boston Metropolitan Airport, Inc., 355 Mass. 344, 354 (1969). Any material failure by
2. We have examined each of the judge’s evidentiary rulings now complained of by the plaintiff. Most of the evidence was properly excluded as inadmissible hearsay or for lack of a proper foundation. We are not persuaded that the admission of the excluded evidence would have required submission of the case to the jury.
Judgment affirmed.