204 Mass. 426 | Mass. | 1910
The defendant contends that the trial judge on all the evidence should have entered judgment in his favor. He contends that his contract with the plaintiff was for goods of the specified weight of four and a half yards to the pound, with no greater variation than one of five points, or five hundredths of a yard, to the pound in any case; and that the plaintiff did not deliver to him such goods, but that the goods which it did deliver to him varied more than five points from the specified weight, being sometimes lighter and sometimes heavier; and that this failure to deliver the goods agreed upon entitled him to rescind his purchase and debars the plaintiff from recovery in an action like this, brought directly upon the contract and without any allegation that the defendant has waived any of the stipulations thereof. He also contends that there is no sufficient evidence that the goods sued for have been either delivered or accepted by him.
The plaintiff’s contention is that by the agreement made between the parties on January 10, 1908, a settlement of the disputes which had arisen between them was reached; that by the terms of this agreement, considered with reference to the existing situation, the defendant abandoned the objections which he had
But the plaintiff’s action was not brought upon the original bargain or upon any of the purchases and sales made thereunder. It was brought upon the agreement of January 10, 1908, which was made expressly as an adjustment and compromise of their respective rights. It was made upon valuable consideration and altered the situation of the parties. By its terms the defendant was to accept the goods which had been already delivered or invoiced to him, and abandon his claim that they did not come up to the old standard. This was not strictly a mere waiver of his rights under the old bargain; it was a new and independent agreement by which the rights of the parties were to be thenceforth regulated. And the additional order was for thirty-five thousand yards “of the same 40" goods.” These words upon their face purported to describe goods like those which had been previously furnished and which the defendant now agreed to accept and pay for, and not goods which should conform to the claims that either party had made previously, whether those claims had or had not been well founded. Certainly, upon the evidence of the situation of the parties and of their previous correspondence the judge was warranted in saying that this was the proper construction of the new agreement. That this was his view sufficiently appears from his finding in favor of the plaintiff, taken in connection with the rulings which he gave and those which he refused to give. And he had a right upon the evidence to find that the cloth delivered by the plaintiff to the defendant conformed to the standard fixed by the agreement, that is, that it was as to width, weave and weight of the same character as the cloth which previously had been delivered upon the defendant’s orders.
Looking in detail at the rulings refused, it is plain from what has been said that the tenth request ought not to have been given, and that a ruling that the plaintiff was entitled to recover was made rightly. The plaintiff recovered because it proved that the contract upon which it relied had been entered into, and that it had performed this contract by making the agreed
The fourth and fifth requests were rightly refused. They were not applicable to the facts of the case. The new agreement was not that the goods should weigh four and a half yards to the pound, but that they should be of the same kind as the goods already delivered or invoiced to the defendant, that they should not fall below the weight named more than those goods had done. The eighth request was properly refused because upon the findings which must be taken to have been made the defendant had no right of rescission.
Exceptions overruled.