288 Mass. 332 | Mass. | 1934
These are actions of contract, in the first of which Rose-Derry Corporation as plaintiff has sued Proctor & Schwartz, Incorporated, on two written agreements.
1. The Bose-Derry Corporation, hereinafter referred to as the Bose-Derry company, was in 1929, and for many years had been, engaged in the manufacture of cotton felt and felt mattresses and in dealing in cotton waste. It had in its factory at Derry, New Hampshire, four so called “garnett” machines which were used to card and process cotton waste and turn it into felt. It had two such machines at its factory in Mechanicsville, New York. In July of that year after oral negotiations- between the parties, Proctor & Schwartz, Incorporated, hereinafter referred to as the Proctor company, made a proposal on a printed form with typewritten insertions to furnish the parts and appliances to convert two of the machines at the Derry factory into the “new design Proctor double doffer delivery machines.” This proposal was accepted in writing by the Bose-Derry company. In September of the same year the Proctor company made a substantially similar proposal which was also accepted in writing by the Bose-Derry
The jury, by its answer to the question submitted, found that the Proctor company failed to perform its contracts in a good and workmanlike manner or to use materials of suitable quality. Performance in that manner of workmanship and with that quality of material was in terms required by the contracts. The judge in effect ruled that the contracts were to be interpreted as limiting the amount of recoverable damages for such failure in performance to the cost of making good the defective machinery. There was at the trial no evidence from which such cost could be determined. It is the contention of the Rose-Derry company that such an interpretation of the contracts was not warranted and that it was entitled to recover damages for what is described in its declaration as “losses of time, sales, profits, production overhead, and other expenses, and raw and manufactured goods and materials,” which losses it is alleged resulted from the failure of the Proctor company to perform its contracts.
The first sentence in this paragraph, considered for the moment apart from the following sentence, was manifestly intended as a statement of the quality of performance required of the Proctor company with regard to materials, workmanship and manner and time of completion. In a contract of this sort some specification of the required character of performance in these respects would naturally be expected. The sentence deals with the manner of performance by the Proctor company up to the time of completion of the work undertaken. Elsewhere in the contracts there are references to the operative qualities of the machines after completion. In one of the two contracts it is stated: “It is understood that the productive capacity of each” of the machines shall be a stated quantity of material per hour, and both contracts recite that the capacity and mechanical operation of the machines were not guaran
The parties adequately expressed in this one sentence a standard of performance for the Proctor company in respect to the obligations there set forth. No added words descriptive of the quality of performance of those obligations were needed. Nor was it necessary to add anything in order to exclude obligations not expressed in the written contract. (S. F. Bowser & Co. Inc. v. Independent Dye House, Inc. 276 Mass. 289, 296.) In another clause that exclusion was fully and definitely stated. Additional words were not required to fix a liability in damages upon the Proctor company if it failed in performance to attain the standard set in this sentence. Such liability without express provision to that effect in the written contracts would by law be imposed for the breach of these or of any of the obligations contained in those contracts. Yet the parties added to the sentence we have been considering another sentence, purporting to limit not merely the liability arising under the preceding sentence but "liability under this contract.” It is not to be assumed that the parties added the sentence, "This shall be the limit of the Company’s liability under this contract,” aimlessly, with the intent that it might be ignored. The words must here be given an appropriate meaning if that reasonably and practicably can be done. Bray v. Hickman, 263 Mass. 409, 414. Crimmins & Peirce Co. v. Kidder Peabody Acceptance Corp. 282 Mass. 367, 375.
Giving to the words employed in the paragraph in question their usual and natural meaning, the language is not ambiguous. Having, in the first sentence, set forth certain
Whatever undertakings or warranties of that company are referred to elsewhere, the parties by this paragraph agreed that it should be liable in damages only for a breach of the obligations as to the quality of performance there expressed. The expressed obligations of the Proctor company, the failure to perform which by agreement of the parties alone would impose any liability in damages, are obligations as to the quality and character of materials and workmanship and the completion of the work in the manner and at the time specified. The parties did not include in their specification of such undertakings of the Proctor company as, if not fulfilled, would entitle the Rose-Derry company to damages, any requirement as to the capacity or quality of operation of the remodelled machines. Such omission in a paragraph stating a definite limitation of liability in damages must be treated as significant. The limitation of liability in damages to a breach of the obligations of the Proctor company which are specifically stated in the paragraph in question and the failure to include within the limits of liability the payment of damages for the breach of
Viewing the contract as a whole and giving to the words in question their ordinary and natural meaning, we think that the parties adequately manifested the intent that the Proctor company should be required to pay damages only if it failed to furnish materials or workmanship of the specified quality or failed to complete the remodelling of the machines in this manner or within the specified time.
So far as the time of completion and delivery is concerned no question is here raised. Since the parties have by their contract made the Proctor company liable only for deficiencies in the quality of material or workmanship and .not for the operating qualities of the remodelled machines, the amount which it could be called upon to pay as damages is limited to the cost of remedying those deficiencies if that reasonably and practicably can be done, or, if not, to the difference between the value of the machines if proper materials and workmanship had been used and their value as they were when delivered. There was no evidence on which the amount of damages could be assessed by either of these methods. While the breach of its obligation by the Proctor company was established, there was no competent evidence of damage. There was no error under these circumstances in directing a verdict for the plaintiff in the sum of $1.
2. The declaration in the action in which the Proctor company is the plaintiff contained counts on a series of notes of which the Rose-Derry company was maker and the Proctor company payee, and a count based on an account annexed setting forth a running account. It is not in dispute that the amount for which the trial judge directed the jury to return a verdict for the Proctor company represented the unpaid balance due on the notes plus the sum
One named as payee in a note who is in possession of it is a holder (G. L. [Ter. Ed.] c. 107, § 18) and may sue thereon in his own name (§ 74). “In this Commonwealth, it is not necessary that the plaintiff in a suit upon a promissory note should have the legal title or beneficial interest in the note, nor indeed that he should have any title or any interest in it.” National Pemberton Bank v. Porter, 125 Mass. 333, 335. Bovarnick v. Davis, 235 Mass. 195, 198. The holder of a note is presumed to be the owner regardless of the fact that it bears his indorsement in blank, Parker v. Roberts, 243 Mass. 174, or to a named person. Dugan v. United States, 3 Wheat. 172. Loveland v. Havlena, 50 N. Dak. 157. Third National Bank of Rockford v. Phillips, 112 Kans. 717. For collection of cases see 30 Am. L. R. 328. “The production of the notes at the trial was prima facie evidence that the plaintiff had a right to sue on the day of commencement of the action.” Newell v. Rosenberg, 275 Mass. 455, 461. The letter dated twenty-five days before the present suit was begun did not rebut the presumption of ownership in the Proctor company at the time the action was begun or at the time of the trial. The Rose-Derry company had prior to the date of the letter repudiated its obligation on the notes and “the indorsee may have decided that the payee should assume the burden of litigation in the matter. It was no concern of the defendants whether this or some other arrangement was made with the indorsee concerning the
3. In the case in which the Proctor company is the defendant, the exceptions of the Bose-Derry company are overruled. The Proctor company in that case took exception to the failure of the trial judge to direct a verdict in its favor and filed a bill of exceptions. At the argument in this court it agreed that its exceptions should be treated as waived if the exceptions of the Bose-Derry company were overruled. Accordingly the exceptions of the Proctor company are overruled.
In the case in which the Bose-Derry company is defendant its exceptions are overruled and judgment therein must be entered for the Proctor company on the verdict.
So ordered.