Albre Marble & Tile Co. v. John Bowen Co.

The question presented by the defendant’s exceptions to the judge’s rulings on evidence is whether the rule as to damages stated in Albre Marble & Tile Co. Inc. v. John Bowen Co. Inc. 338 Mass. 394, 399-401, has been correctly applied. We adopt the numerical designations used in the record and briefs to refer to the controverted items. We do not disturb item 4 because the defendant has not argued it, nor items 7 and 8 because there was no objection to the evidence and no request for, or exception to, instructions to the jury regarding them. Exceptions as to items 1, 2, and 3 are overruled because the items relate to work which the jury could say was undertaken by the plaintiff in conformity with the specific request of the defendant as provided in the contract. Exceptions as to items 5, 6, 9, 10,11, and 12 are sustained because they relate to work which the jury could not say was so undertaken. The motion to amend the plaintiff’s declaration is denied. The defendant’s exception to the denial of its motion for a new trial is overruled. Judgment is to be entered for the plaintiff in the sum of $2,006.60 with appropriate interest. G. L. (Ter. Ed.) c. 231, § 124. Flower v. Billerica, 320 Mass. 193, 198. See Simmons v. Fish, 210 Mass. 563.