Beacon Tool & Machinery Co. v. National Products Manufacturing Co.

Rugg, C.J. This is an action of contract, brought in the Municipal Court of the City of Boston. It relates to work — 90 — done by the plaintiff upon a machine owned by the defendant known as a “No. 19 Bliss Press with attachments.” It is stated in the report that a “contract was drawn by the plaintiff and the defendant dated May 9,1921, whereby the plaintiff, upon the delivery of the said press with whatever feeding attachments and other special parts the defendant then had on hand as shown to the plaintiff, agreed to reconstruct the same, fitting it with all necessary dies, punches and devices so that when completed it would automatically perform certain work therein set forth, and to complete the work not later than June 20, 1921, the consideration to be five hundred ($500) dollars. Subsequent to the time the machine was delivered to the plaintiff, it was found that the experimental work could not be completed within the period stated either in respect to time or for the amount specified, and the defendant thereupon agreed to pay Five hundred dollars ($500) in addition thereto for the work, and extended the time for completion to August 15, 1921.” There was conflicting evidence touching the point whether the machine was so designed that it could be completed to function as required by the contract. There was no evidence to the effect that the written contract was performed. The contract as set out in the record is absolute and unconditional in its terms. In substance and effect, it was to reconstruct and complete the machine so that it would automatically perform the specified work. There is no reference in the contract as printed in the record to drawings to be furnished by the defendant to the plaintiff. Even though the difficulties in the way of the performance of the written contract according to its terms were insuperable, the court cannot relieve the plaintiff from the absolute bargain which it saw fit to make. It must perform the contract or fail in its action. The case on this point is within the authority of several of our decisions. Rowe v. Peabody, 207 Mass. 226, 233, 234, and cases there collected. Wells v. Calnan, 107 Mass. 514. Boyle v. Agawam Canal Co. 22 Pick. 381. N. J. Magnan Co. v. Fuller, 222 Mass. 530, 533. The facts are not such as to permit recovery on a quantum meruit. Since the contract was in writing, it must be presumed to — 91 — contain the entire agreement of the parties. It cannot be enlarged by oral evidence concerning previous or contemporaneous discussion. Goldenberg v. Taglino, 218 Mass. 357, 359. Spevack v. Budish, 238 Mass. 215, 217. Avondale Mills v. Benchley Brothers, Inc. 244 Mass. 153, 157. While there was evidence that the time for performance of the contract was subsequently extended by act of the parties and the price to be paid for its completion was enlarged, there was no evidence of subsequent change as to the nature of the main obligation resting on the plaintiff. That remained as written in the contract. The record is not very satisfactory: but we can decide the case only as presented. It follows that the plaintiff, having failed to perform its contract, cannot recover either on the contract or on the quantum meruit. Mark v. Stuart-Howland Co. 226 Mass. 35, 43. The first request for ruling ought to have been granted. The action of the Appellate Division was right in ordering a new trial. The trial judge at the first trial found in favor of the plaintiff. Upon his report pursuant to an appeal by the defendant, the Appellate Division ordered a new trial. The plaintiff appealed from that order. That appeal could not be entered in this court until there had been a new trial as ordered because that order of the Appellate Division was not a final decision. Real Property Co. Inc. v. Pitt, 230 Mass. 526. The new trial resulted in a finding for the defendant from which the plaintiff did not appeal. Correct practice required the plaintiff to appeal from that decision.to the Appellate Division and then, if its decision was again adverse to him, to bring the entire record to this court. Matson v. Sbrega, 250 Mass. 138, where the cases are collected. We have, however, preferred to discuss the case on its merits, although in this respect the case at bar is not to be regarded as'a precedent. Commonwealth v. McNary, 246 Mass. 46, 48, and cases there collected. Diaz v. Patterson, 263 U. S. 399, 402. Finding for defendant to stand.