This is an action to recover damages for the
The plaintiff is a farmer in Charlemont and the defendant a milk dealer in Boston. During the late summer of 1911 the plaintiff began shipping milk to the defendant at thirty-twо cents per can. In the fall of 1911 the defendant and his sister drove to the plaintiff’s house and a conversation took place between the parties. It is upon this conversation that the plaintiff bases this action.- The plaintiff testified that the defendant told him that other pаrties were furnishing a part of the cans necessary for carrying on the business, and asked him to do the same; and that he told the defendant that he would furnish cans as requested if the defendant wоuld agree to take his milk for a year at thirty-four cents a can. Down to this point the parties agree. The plaintiff further testified that the defendant agreed to take his milk for a year. The defendant testified that he did not so agree, and that the plaintiff did not let him know until the next day that hе would furnish the cans. This conversation took place, according to the plaintiff’s recollection, in November, though he would not say positively. The defendant introduced evidence tending to show that it took place in the afternoon of Sunday, October 22. There was other evidence bearing on the question when the contract took effect, but it is not neсessary to refer to it more particularly now..
The first ruling requested was in substance that if the jury should find thаt the contract was made on the Lord’s day the plaintiff could not recover. This was rightly refusеd. The defense of illegality was not set up in the answer and was not therefore open tо the defendant. O’Brien v. Shea,
The second ruling requested was that if the contract was for one year and the year did not include the day on which it was made the plaintiff could not recover in the absence of a written memorandum. This was given in substance though not in form. The presiding judge was not obliged to use the exact language of the request. The jury were instructed as follows: “If the agree
The mеasure of damages included the profits which the plaintiff would have realized from the contract if it had been fully performed. Fox v. Harding, 7 Cush. 516, 522. In the absence of anything to the contrary it is to be presumed that the price for which the plaintiff sold the milk to Hood after the defendant had refusеd to take it, was the best price obtainable, and it was admissible for the purpose of. showing the profits which the plaintiff would have realized and the loss which he sustained.
The question whether the plaintiff owned or had any financial interest in the milk he was shipping to the defendant was рroperly excluded. Whether the plaintiff owned or had any financial interest in the milk had nothing to do with the contract or with the defendant’s breach of it. We also think, that, as the case stаnds, the question to the witness Legate, “Were Mr. Raymond [the plaintiff] and your son in partnership at this timе? ” was properly excluded. There was no offer to show that the contract in suit was a рartnership transaction and that in making the contract the plaintiff was acting for and on bеhalf of the firm, in which case the question would have been admissible; Baker v. Jewell,
jExceptions overruled.