247 Mass. 153 | Mass. | 1923
The case went to the jury on the second count, which was based on a breach of the following agreement:
“ Boston, Oct. 8, 1919.
Mr. H. Rosenthal.
Dear Sir: —
bought
I am in [need
I will buy this coal from you, at the regular market price or $12.50 per ton, net, for all coal I shall order from time to
The above is be good * Egg size ’ coal.
(Signed) Henry Green
„ Israel Ramler.”
The record is meager; but the jury could find the following facts: The plaintiff was a wholesale and retail coal dealer. The defendant’s intestate, Henry Green, was in the real estate business, and owned or managed divers pieces of property in Boston and Winthrop. He had been buying coal from the plaintiff in carload lots, and owed a balance of $675. Early in October, 1919, Green told the plaintiff that he needed fourteen hundred tons of coal for the season; and after some discussion the above agreement was produced, signed by Green and by a friend as witness. In consideration thereof, the plaintiff gave Green a written release of the $675 debt, and also an agreement to perform the contract on his part. This last paper, referred to apparently as exhibit 2, is not printed in the record.. Green never ordered any of said fourteen hundred tons of coal.
The agreement itself is informal and vague. The case is confused by the transcript of the judge’s charge, wherein the word “ defendant ” is printed in three or more instances where it is obvious from the context that “ plaintiff ” was intended. And the plaintiff has not appeared by counsel, or filed a brief, to aid the court in interpreting an unsatisfactory record. However, as we construe the agreement in controversy, in the light of the attendant facts, the defendant’s intestate thereby, for a valuable consideration, made a binding contract for the purchase of fourteen hundred tons of egg coal. The price to be paid was $11 per gross ton for such as Green desired to have delivered in carload lots, and the regular market price for team loads. The jury were warranted in finding that there was a valid bilateral contract, and a breach of it by the defendant’s intestate.
In our opinion' the exception must be sustained. As stated by Chalmers, in dealing with the similar provision in the English act, “ The market price rule in sub-sect. (3) is an obvious deduction from sub-sect. (2), applicable to the ordinary goods of commerce for which there is a more or less ready sale. The rule is so convenient, that the courts apply it whenever and so far as practicable.” Chalmers, Sale of Goods Act, 1893 (8th ed.) 114. And see Williston on Sales, 967. The provisions of G. L. c. 106, § 56 (3), are applicable to the agreement in question for the sale of coal, on the facts disclosed by this record. The plaintiff did not show that he could not and did not sell the coal left upon his hands at a market price at least equal to that which the defendant had agreed to pay therefor. No case of “ special damages ” was made out for which provision is made in § 59. In effect the release was merely a consideration moving-from the plaintiff which bound the defendant to take the'
It is unnecessary to consider in detail the defendant’s twenty-one requests for instructions. There is no evidence in the record to call for many of them, — such as 4, 5, 9, 11 and 12; others, like 15, 16, 17 and 18 select special facts for argumentative emphasis. Altavilla v. Old Colony Street Railway, 222 Mass. 322. The remaining ones, and the motion for a directed verdict, are sufficiently covered by what has been said above. Manifestly the exception to the charge as a whole, and that to the denial of a motion to set aside the verdict cannot prevail. Nor do we find any reversible error in the admission of evidence. But by reason of said error in the instructions as to damages, the entry must be
Exceptions sustained.
In the original exhibit, the word “ need ” had a line drawn through it and the word “ bought ” was written above it.