249 Mass. 516 | Mass. | 1924
The contract for breach of which damages are sought, with a reconveyance of the personal property held by the defendant, party of the first part, as security for its performance by the plaintiffs, expressly stipulates, that in the making for the defendant of men’s khaki trousers from material furnished by him at a certain price for every dozen, the work was to be done by the plaintiffs “ in a manner satisfactory to the personal satisfaction of the party of
The entire evidence having been taken by a commissioner is before us on the appeal. We can, therefore, review the whole case and, giving due weight to the findings of the trial judge, order such decree to be entered as justice may require. Rubenstein v. Lottow, 220 Mass. 156. Martell v. Dorey, 235 Mass. 35, 40. Danforth v. Chandler, 237 Mass. 518. O’Riorden, petitioner, 244 Mass. 472, 475.
The judge has found, that, while the plaintiffs performed their contract, the defendant broke it by failing to deliver stock to the plaintiffs. While the judge erroneously instructed himself as to the law, his finding that the defendant ought as a reasonable man to be satisfied with the plaintiffs’ work would not have been made unless he rejected the defendant’s evidence, which in effect as well as in statement was that during the period of performance he constantly complained and was personally dissatisfied with the work of the plaintiffs. If the defendant’s evidence is thus discredited, we are not bound to accept it, and the finding is warranted that his refusal was not a decision of personal dissatisfaction made in good faith, but was a mere pretence to avoid liability.
The defendant offered in evidence a copy of a letter written by his direction presumably to the plaintiff Jacob Weinstein. The plaintiffs objected, “ not that it is a copy, but that it hasn’t yet appeared it was mailed; it was placed in some portion of the office from which somebody was supposed to take it and mail it.” The defendant had previously testified without objection, that'he had seen the letter, and that it
The question, whether, Charles Weinstein having sold his interest in the partnership to Jacob Weinstein after the contract had been entered into, the bill as originally brought could be maintained by Jacob Weinstein in his own name, is raised. The defendant contends, that, the contract having been made with a partnership composed of Charles Weinstein and Jacob Weinstein, and Charles having sold his interest to Jacob and retired from the firm, the bill should be dismissed. The defendant not only answered to the merits, but by an amendment Charles Weinstein was joined as a plaintiff. Palmer v. Sawyer, 114 Mass. 1. Case v. Minot, 158 Mass. 577, 587, 588.
The judge states, that the parties “ modified the written contract . . . and agreed orally,” that for every dozen pairs of defective trousers, the defendant should be allowed a reduction of fifty cents from the contract price. A written contract can be varied at common law by paroi at any time before breach. Cummings v. Arnold, 3 Met. 486, 489.
But the suit was brought on the unmodified contract, and
The defendant also urges that no damages were suffered by the plaintiffs by reason of the defendant’s alleged failure to furnish more material than the quantity which he supplied, and that the finding of substantial damages was unwarranted. The question of damages was one of fact, and upon examination of the evidence, the findings cannot be said to have been plainly wrong.
We have considered all the questions argued by the defendant and the result is that, if the amendment is filed, the entry will be, decree affirmed; if the amendment is not filed the entry will be, decree reversed.
Ordered accordingly.