F. W. Stock & Sons v. Snell

Sheldon, J. The rulings asked for by the defendant numbered from three to thirteen inclusive should have been given. Not merely the first and second, but all the items in the account annexed to the third count of the plaintiff’s amended declaration [453] were particulars of special damages claimed by the plaintiff for the breach by the defendant of the two written contracts set out in the first and second counts. As these contracts had not been performed and the title to some of the goods described had never become vested in the defendant, the plaintiff could not recover upon his present claims in an action upon an account annexed. R. L. c. 173, § 6, cl. 8. The rule to be applied was stated by Shaw, C. J., in Moulton v. Trask, 9 Met. 577, 580, and has been uniformly followed in our decisions. Morse v. Potter, 4 Gray, 292, 293. Stearns v. Washburn, 7 Gray, 187. Bowen v. Proprietors of South Building, 137 Mass. 274, 276. Field v. Banks, 177 Mass. 36. No special damages were alleged in the first or second counts, and accordingly the measure of damages under each of these counts was the difference between the contract price and the market price of the flour refused by the defendant at the respective times and places at which it was to have been delivered. Tufts v. Bennett, 163 Mass. 398. Barrie v. Quinby, 206 Mass. 259, 268. Much of the plaintiff’s argument is irrelevant. The bill of exceptions contains the material evidence introduced at the trial, as was not the case in Wade v. Smith, ante, 34. And, as the third count should not have been submitted to the jury at all, cases like Khron v. Brock, 144 Mass. 516, give the plaintiff no comfort. It may be that the verdict was justified under the first and second counts; but it was a general one, and we cannot tell upon what counts it was rendered, or what items, other than the first and second of the account annexed to the third count, were included in it. Lynch v. Allyn, 160 Mass. 248, 255. Fairman v. Boston & Albany Railroad, 169 Mass. 170, 178. Hagar v. Norton, 188 Mass. 47, 51. Accordingly there must be a new trial. As both the pleadings and the evidence may be different at another trial, we do not deem it expedient to attempt to settle now the other questions which have been raised. Exceptions sustained.