C. & S. Shoe Manufacturing Co. v. Dennett & Goddard, Inc.

Sandekson, J. In this action the plaintiff seeks to recover damages for breach of contract for the sale by the defendant to it of a specified quantity of leather. It appears from the judge’s charge that a memorandum of sale of the leather was made which called for its shipment in equal monthly instalments in June, July and August, 1927. The declaration alleges that the defendant has failed and refused. to deliver a portion of the leather, to the plaintiff’s damage. The answer of the defendant is a general denial, that the plaintiff was in default by failing to pay for part of the goods delivered to it, and that therefore the defendant was relieved from further delivery. The memorandum of sale did not state who was to make deliveries or when payments were to be made. There was evidence that no other leather was in the market like that ordered and that no other leather was ever made like it. Evidence was introduced from which the jury could have found that it was the defendant’s duty to make deliveries of the leather to the plaintiff. The defendant, therefore, was not entitled to a directed verdict on the theory that the plaintiff was in default because of its failure to call for the leather at the defendant’s place of business. There was evidence that part of the first instalment of the leather was received in June and the rest in July. Upon conflicting evidence the jury could have found that the parties agreed that payment for this instalment of leather was not due until August 15, 1927. They also could have found on the evidence that the plaintiff was not in default when in July, 1927, the defendant sold the leather, and that the defendant by that sale became liable to the plaintiff for a breach of contract. In the charge the judge said: “So this very narrow [319] issue of fact is to determine your verdict in the case which the shoe company has brought: When was this leather to be paid for? If it was the fifteenth of July, it is admitted they failed to pay for it then, and their failure was a default on their part in the proper performance of the contract, which would prevent their recovery in this case and would require you to find for the leather company. If it was not until the fifteenth of August, as the shoe company claims, then there was no default at the time that demand was made for payment in July, because it would not be due until August. In that event there was no default in performance on the part of the shoe company. If that be your finding of fact, then the shoe company has made out a case. You decide that one question of fact, and then you will have the decision of whether you will find for the shoe company or the leather company in this . . . case.” The judge also instructed the jury, in substance, that the measure of damages was the difference between the contract price and the market value of the same kind of leather on the date of breach, and that if- there was no leather of the same kind in the market the plaintiff would be justified in using its best judgment in acquiring a leather suitable to its needs in place of the leather purchased. The defendant, not having excepted to any part of the charge and not having directed the judge’s attention to any misstatement therein, cannot now contend that the judge erred in thus presenting the controlling issue and rule of damages in the case. McLellan v. Fuller, 220 Mass. 494, 500. Barringer v. Northridge, 266 Mass. 315, 320. For breach of contract by the defendant the plaintiff was entitled to recover the difference between the contract price and the market value at the time of breach even if he made no purchase of leather then or thereafter. Evidence was introduced of the market value of. the leather at the time of breach. Tufts v. Bennett, 163 Mass. 398. Moffat v. Davis, 200 Mass. 452, 458. Barrie v. Quinby, 206 Mass. 259, 268. Cumberland Glass Manuf. Co. v. Wheaton, 208 Mass. 425, 434. There is nothing in Hall v. Paine, 224 Mass. 62, which conflicts with the law as applied [320] ' in the case at bar. No exception was saved by which the question whether the verdict was excessive could properly be raised, and we discover no error of law in respect to that matter. Exceptions overruled.