Somers v. Wright, 115 Mass. 292

Somers v. Wright

115 Mass. 292 | Mass. | 1874

Colt, J.

By the terms of the purchase the plaintiff had the right to pay in lumber “ at current retail prices ” for the estate which the defendant conveyed to him. ' There was no time named for the delivery of the lumber, and the consideration for the deed was due when the conveyance was made. The property was subject to a mortgage for $5000, wnich the defendant agreed to discharge before the first of April following, giving the plaintiff the right to withhold lumber to the amount of the incumbrance until it was removed, and the plaintiff at the same time giving to one *298Farwell a due bill of the firm of which he wu? a member, payable in lumber on demand, for the balance of the consideration. The defendant did not obtain a discharge of the mortgage as agreed, and the plaintiff paid the same when due with one year’s interest to August 20, in order to save his estate from foreclosure.

This action is to recover the profits which would have accrued to the plaintiff by the delivery of $5000 worth of lumber at retail prices instead of cash, with the interest paid on that sum.

It was contended that the plaintiff could not under this agreement and declaration recover for loss of profits. But the agreement, as applied to the subject matter, and the relations of the parties under another contract expressly referred to, clearly shows that the loss of profits claimed is the loss which must necessarily and directly arise from its breach, and which must have been contemplated by the parties when the contract was made. Profits of this description may be recovered, although as a general rule the profits of a future transaction are regarded as an element too remote to be taken into account in the estimate of damages. Fox v. Harding, 7 Cush. 516. Masterton v. Brooklyn, 7 Hill, 61.

The defendant then offered to show the net profits realized by one of his witnesses who was a lumber dealer, on sales of lumber made by him during the time -in question. This was excluded as being too remote in its tendency to show the plaintiff’s actual loss of profits, and no exception properly lies to its exclusion. The profits of any one particular dealer would not be a fair criterion of the plaintiff’s loss.

The ruling that the measure of damages would be the difference between the wholesale and retail price of lumber, or the difference between what the plaintiff could obtain for it at wholesale and at retail, as afterwards explained in the judge’s charge, must be construed to have required the jury to find what the plaintiff lost by being deprived of an opportunity to sell at retail prices. This depended on the market value of such lumber at wholesale. The instructions taken together do not necessarily imply, as the defendant contends, that the jury must find the difference between what the plaintiff paid for lumber when he bought at wholesale and what he sold for at retail, but rather that they must find the difference on sales made at wholesale and at retail.

*299There was no error in the ruling that a refusal to deliver lumber upon the due bill given to Farwell by the firm would not be such a breach of the plaintiff’s agreement as would excuse the defendant from the performance of his obligation to take up the mortgage. The due bill was given at the request of the defendant and as part of the consideration for the deed to him. Far-well held it as collateral security and by good legal title. The obligation assumed to Farwell was a discharge to that extent of the defendant’s claim on the plaintiff. A failure to deliver to Farwell or his order would be a breach of the contract of the firm for which they might be responsible to him, but it would afford no defence in an action at law between the parties to this contract, notwithstanding the equitable considerations suggested.

But the ruling of the court as to the recovery of interest which accrued on the mortgage after the first of April is erroneous. The plaintiff took immediate possession of the property upon the delivery of the deed. The whole consideration was then due, except so far as it was postponed by the agreement in regard to the mortgage. That agreement was broken on the first of April, and the plaintiff’s rights were fixed. The payment- of the mortgage in cash was one mode of paying the balance of the consideration then due. But the plaintiff would have no claim on the defendant for interest which accrued after that date. He is indemnified if he recovers his loss of profits and the interest on the mortgage to April first, — that amount of interest being so much in excess of the consideration agreed on for the deed. To this extent the defendant’s exceptions are sustained, unless the plaintiff chooses to remit the excess and take judgment for the reduced amount. Ordered accordingly.