229 Mass. 254 | Mass. | 1918
It appears from the correspondence between the parties, that the plaintiff’s predecessor, to whose rights it has succeeded, contracted to deliver, free on board at the place of shipment, a certain quantity of “long leaf merchantable hard pine,” the sizes of which were specified on schedules, which were to be used for the first floor of the high school building in process
A notice, that if the material needed for the first floor was not delivered promptly the defendant would buy it elsewhere, is not notice of a breach of the contract for which damages would be claimed. The verdict for the plaintiff for the full amount with interest being conclusive of the defendant’s failure to show compliance with the statutory condition, his exceptions, to the exclusion of evidence which he contends was admissible on the question of damages to which he was entitled in recoupment have become immaterial and need not be determined.
We add to avoid any misconception that, the facts not being in dispute, the question whether the judge should have ruled as matter of law that the defendant had not acted within a reasonable time, not having been raised at the trial, has not been considered.
Exceptions overruled.