267 Mass. 220 | Mass. | 1929
This is an action of contract to recover for loss of profits alleged to have resulted to the plaintiff from the refusal of the defendant to accept certain "Camera-Phonographs” or small talking machines which the plaintiff contends the defendant ordered in writing and agreed to buy from it. The case was-tried before a judge of the Superior Court and a jury. The judge ruled as matter of law that the plaintiff could not recover, directed a verdict for the defendant, and reported the case "upon the stipulation that if the ruling and direction” were wrong "a verdict [is] to be entered for the plaintiff in the sum of $1500, plus the accrued interest and costs; otherwise judgment for the defendant on the verdict is to be entered.”
The jury would have been warranted in finding that on or about March 28, 1924, the defendant gave to the plaintiff an order in writing, in the form herein set forth, and that the
date March 28,1924
ordered of Specialty Trading Co.
547 Broadway,
New York, N. Y.
THIS SALE SUBJECT TO CONDITIONS ON FACE AND BACK OF THIS SHEET
terms 2% 10 days dating April 1st ship via Boat 30 days net
NO. QUAN. ITEMS PRICE DISCNT. TOTAL RECEIVED
200 Camera-Phonographs
List 15.00 Net each 7.20
With aluminum horns
This Order given with the understanding that We are to be the Exclusive Distributors of the above Camera-Phone in the New England States, Our allotments to be Five Thousand Machines in the next year. All Instruments fully guaranteed for one year. We will notify you by the end of 60 days as to our weekly requirements.
Should we desire to discontinue after the first year we agree to give you ninety days notice.
'Send Electros’ Signed A. C. Erisman
Supply Parts.
Fibre Horns.
If by the contract so made the defendant was bound to accept only two hundred ‘' Camera-Phonographs,” there was no evidence of breach thereof by the defendant, and the ruling of the judge and the direction by him of a verdict for the defendant were right. If, on the other hand, by this contract the defendant was bound to accept five thousand “Camera-Phonographs,” there was evidence of breach and the ruling and direction of a verdict were wrong. Thus the case turns on the construction of the written order.
Since the order was in writing, its construction was for the judge and not for the jury. Gould v. Converse, 246 Mass. 185, 189. Clearly according to its terms only two hundred
There was evidence, introduced by the plaintiff, which tended to show that at the time the order was given and accepted the plaintiff’s general manager, who acted for the plaintiff in the transaction, understood that it was an order for five thousand machines. Such evidence cannot vary the effect of the written contract. Deutsch v. Pratt, 149 Mass. 415, 420. There was also evidence of a course of conduct of the parties after the contract was made, including correspondence between them, from which the plaintiff argues that both parties treated the order as calling for five thousand machines. Even if it is assumed in favor of the plaintiff that the evidence warrants this conclusion, the written order
Since on the true construction of the defendant’s order for “ Camera-Phonographs ” there was no evidence of breach of the defendant’s contract, the trial judge was right in ruling that the plaintiff could not recover and in directing a verdict for the defendant.
Judgment for the defendant.