Cohen v. Wintman

Jennet, J. The evidence was amply sufficient to justify a finding by the jury that in June, 1917, the plaintiff paid to the defendant $426, in consideration of his agreement to transmit — 472 — the amount to a bank in Petrograd, Russia, and to procure therewith a bank book for two thousand rubles, which was to be delivered to the plaintiff, who on its receipt was to pay the defendant $56 more. No time being stated in the agreement, it was the duty of the defendant to perform his obligation within a reasonable time. The evidence also warranted a finding that the defendant never transmitted any of the money so received, although he testified to the contrary, and that he unjustifiably failed to perform any part of the contract. No bank book was ever delivered to the plaintiff, who waited “a great many months” before instituting this action on July 10, 1918. At the close of the evidence, the defendant duly moved that a verdict be ordered in his favor, and also requested the trial judge to instruct the jury that “upon all the evidence the verdict should be for the defendant.” He excepted to the denial of his motion and to the refusal of his request. The case was submitted to the jury, who found for the plaintiff. The exceptions must be overruled. A wrongful and entire failure by the defendant to perform the contract authorized its rescission by the plaintiff, and entitled him to recover the amount paid, upon a count for money had and received. The plaintiff was not bound to affirm the contract by an action for damages suffered by reason of the defendant’s non-performance. Brown v. Harris, 2 Gray, 359. Minturn v. Warren Ins. Co. 2 Allen, 86, 89. Ballou v. Billings, 136 Mass. 307. R. H. White Co. v. Remick & Co. 198 Mass. 41, 47. Runkle v. Burrage, 202 Mass. 89, 99. Martin v. James Cunningham, Son & Co. 231 Mass. 280. Exceptions ovemded.