Poresky v. Wood

DeCourcy, J. The first count of the declaration is for breach of a written agreement, dated September 18, 1922, for the sale of a “ Hupp Sedan (new car 1923).” Payment of the price ($1,915) was to be made by a credit of $865 for an old car, a deposit of $20, $530 in cash on delivery, and $500 four weeks thereafter. The trial judge found that no car answering the description in the contract of sale sued on was in the market at or prior to the date of the writ; and ruled that the plaintiff’s action was prematurely brought, so far as the first count was concerned. We cannot say that this finding was unwarranted. There was evidence that no models answering the description “ new car 1923 ” in the contract were manufactured prior to April, 1923, and that the Hupp sedan then put out differed in many mechanical details from any models previously on the market. We must accept the trial judge’s findings of fact, even though there was evidence to the contrary, and the refusal of the New England distributors of the Hupmobile to deliver a car in October was based on another ground. Daniels v. Newton, 114 Mass. 530. Potter v. Starratt, 235 Mass. 325. The second count is for the recovery of $20, paid as a deposit. On conflicting testimony the judge found that [466] “ the plaintiff received and accepted a check executed by the defendant for the amount of the original deposit made on said car, though said check was never cashed by the plaintiff.” In other words he found that the plaintiff accepted the check as payment of the deposit. See Illustrated Card & Novelty Co. v. Dolan, 208 Mass. 53. She now complains that this finding virtually makes it impossible for her to maintain a new action. If such should be the result, it is due to her attempt to divide a single cause of action. There was but one entire contract, and a single breach of it. One of the elements of damage recoverable for such breach was" this $20 payment. Canning v. Shippee, 246 Mass. 338. See Katzeff v. Goldman, ante, 365. Order dismissing report affirmed.