United Neon Sign Corp. v. Zahos

Piebce, J. This is an action of contract which was tried in the District Court. Damages were assessed for the plaintiff. It is before this court on appeal of the defendant from the order of the Appellate Division dismissing the report. The plaintiff’s amended declaration reads: "And the plaintiff says that on or about the eighteenth day of March, 1933, the plaintiff and defendant entered into a written agreement, a copy whereof is hereto annexed and marked ‘A’, by the terms of which the plaintiff agreed to sell and the defendant to purchase a certain electric neon sign for the sum of $52, payable in instalments of $1 weekly from date; that the plaintiff has done and performed all things required of it to be done and has delivered said sign, but the defendant, contrary to his agreement, has failed and refused and still fails and refuses to carry out his part of the agreement and has not paid the instalments due under said agreement. Wherefore the plaintiff secured a purchaser for the said sign and sold said sign to said purchaser in order to minimize the defendant’s damages. Whereby the plaintiff sustained a loss in the sum of $36, all to its great damage.” The answer is a general denial, payment, an allegation that the sign delivered to the defendant was a "different and inferior sign” to the one the defendant agreed to purchase, and [206] that the written agreement was induced by fraud and misrepresentation. At the trial in the District Court the plaintiff offered the agreement in evidence after proving the defendant’s signature. The defendant objected to its admission in evidence on the ground that the declaration was upon a written agreement entered into by both the plaintiff and the defendant, whereas the evidence offered was an instrument signed by the defendant only. The trial judge admitted said instrument in evidence. The defendant objected, and requested that said ruling be reported. The trial judge found for the plaintiff, and assessed the damages in the sum of $36. He reported the case to the Appellate Division for determination. The admission in evidence of the agreement unsigned by the plaintiff was manifest .error. To recover on the amended declaration the plaintiff must prove a written agreement entered into by both plaintiff and defendant. Whelton v. Tompson, 121 Mass. 346. The evidence offered is a variance between the allegation and proof of the declaration. Whelton v. Tompson, 121 Mass. 346. The variance was material in that the obligation of the defendant to pay the price agreed upon for the sign was founded upon the consideration that that sign should be delivered and the plaintiff should do and perform the acts and things agreed to be done by it. The difference between the obligation proved and the obligation which arose on the execution of the written agreement is radical and went to the merits of the case. A finding for the defendant was required. Mabee v. Hersum, 248 Mass. 188. Rosegartin v. Cohen, 258 Mass. 534, 536. The order that the report be dismissed is reversed.