Moffat v. Davitt

Braley, J. The amended declaration having aptly set forth the contract and alleged as a breach the defendant’s unqualified refusal to accept and pay for the pig iron, a case was stated which if proved would entitle the plaintiffs to recover damages. Speirs v. Union Drop Forge Co. 180 Mass. 87. National Machine & Tool Co. v. Standard Shoe Machinery Co. 181 Mass. 275. Clark v. Gulesian, 197 Mass. 492. R. H. White Co. v. Remick, 198 Mass. 41. [457] If evidence of the business dealings between the plaintiffs and the former owner of the foundry, who originally had been joined as a party, was competent until the amendment discontinuing the action as to him and the amended declaration had been allowed, it then became inadmissible against the defendant. But at the close of all the evidence, this testimony having been excluded on the defendant’s motion and the jury fully instructed to disregard it, the exception previously taken to its admission is no longer open, as the defendant fails to show that she has been prejudiced. The defendant became the owner of the foundry under an agreement to assume and pay the outstanding merchandise indebtedness of the vendor, which included bills due or to become due to the plaintiffs for iron already delivered or to he furnished in the future. The plaintiffs do not contend that evidence of the defendant’s failure to pay this indebtedness according to the terms of the sale had any connection with the contract, for the breach of which the present action was brought, but they contend that it was admissible on the issue of repudiation. Upon this question much evidence, including numerous letters between the parties, was introduced. If repudiation of the contract by one of the contracting parties may be shown by proof of an unqualified refusal of performance directly made to the other party, it also may be shown by proof of such conduct on his part as to leave no other reasonable inference. After the defendant purchased and carried on the foundry, proof of her delay in meeting payments of debts connected with the business, as well as the letters of her manager, from which it could have been inferred that the enterprise had turned out to be unprofitable and that she was contemplating an early sale of the plant, while constantly delaying if not refusing to accept delivery of any part of the five hundred tons of iron, the market price of which had decreased, furnished evidence from which the jury would be warranted in finding that she finally had decided not to perform, and was seeking to get out of a bad bargain. Earnshaw v. Whittemore, 194 Mass. 187. The offer of performance tendered by her counsel in reply to the plaintiffs’ demand for a settlement did not weaken the probative force of this testimony, for it easily could have been found to have been a possible [458] makeshift, intended only to postpone a lawsuit. There having been no dispute that the plaintiffs not only were ready and willing to perform but tendered performance, it consequently follows that the defendant’s request for a ruling, that upon the pleadings and the evidence the plaintiffs could not recover, was refused rightly. Morton v. Clark, 184 Mass. 555, 557. Nor is the exception to the supplemental instruction on the measure of damages well taken. If the contract was found to have been wholly repudiated, then, whether after it had been made there was a subsequent oral agreement for the delivery of the iron as it might be needed from time to time, or this was to be implied from the terms “ that we pay cash in thirty days from arrival of each car” when read in the light of the attendant circumstances, as claimed by the defendant, or whether delivery was to be within a reasonable time under the construction claimed by the plaintiffs, became an immaterial question. Whichever construction was adopted, the contract was entire, even if payments were to be made by instalments, and, as no part of the purchase had ever been delivered, the measure of damages was correctly stated to be the difference between the market price of the entire amount at the time of repudiation and the price at which the iron had been sold. Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474. McLean v. Richardson, 127 Mass. 339. Parker v. Russell, 133 Mass. 74, 75. Speirs v. Union Drop Forge Co. 180 Mass. 87. Earnshaw v. Whittemore, 194 Mass. 187. Exceptions overruled.