Bucholz v. Green Bros. Co.
| Decision Date | 30 June 1930 |
| Citation | 272 Mass. 49 |
| Parties | HERMAN H. BUCHOLZ v. GREEN BROS. COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 6, 1929.
Present: RUGG, C.
J., CROSBY, PIERCE CARROLL, & WAIT, JJ.
Contract Performance and breach. Damages, In contract. Practice Civil, Variance; Amendment: after verdict; Exceptions.
An exception, saved by a party at the close of the charge to the jury at the trial of an action, "to each of the acts and rulings of the [trial] court herein specified," without any particular statement in the charge being specified as the subject of exception, was at most an exception to the whole charge and must be overruled.
A plaintiff in an action for breach of contract is entitled in general to damages sufficient in amount to compensate him for the loss actually sustained by him and to put him in as good position financially as he would have been in if there had been no breach and he had completed the contract; he may not insist upon extraordinary or unforeseen elements of damage, but only upon such as flow according to common understanding as the natural and probable consequences of the breach and such as may be presumed to have been in the contemplation of the parties at the time the contract was made. Per RUGG, C.J.
A contract between a painter and a corporation required the painter to paint certain advertising signs, to maintain them for one year and to repaint them at the end of six months; and required the corporation to pay to the painter certain sums each month. The corporation failed to make some of the monthly payments after the signs were painted, so that at the end of six months a substantial sum was overdue. The painter then refused to repaint the signs. Thereafter the corporation made and the painter accepted some payments on account. In an action by him against the corporation for failure by the defendant to make the other payments due, there was evidence that the parties had a conversation at the end of six months, in which the plaintiff stated to the defendant's representative that he could not finance the work of repainting the signs unless the defendant paid him the money then in arrears and that the cost of repainting would be about that sum; and the defendant's representative said that it was not in a position to pay and that, if the plaintiff would go ahead with the work, it
"would probably be able to pay" later on. Held, that (1) Findings were warranted that the defendant's obligation to make the monthly payments was an essential feature of the contract and that its failure to perform that obligation was so serious and substantial as to justify the plaintiff in refusing to go on with the contract and to incur expense in repainting the signs;
(2) There was no error in instructions to the jury, that the plaintiff could not recover if he had done only part of what he agreed to do, unless he was excused in some way by the defendant from doing that which he was required by the contract to do but had failed to do; that failure by the defendant to do that which was required of it, occurring previous to the time when the plaintiff was required to do something under the contract which he failed to do, would constitute such excuse; and that the vital question to be decided was whether the plaintiff had performed all that he was required to do previous to the failure to perform on the part of the defendant;
(3) The plaintiff was not barred of recovery by accepting from the defendant a portion of the money due to him after having refused to go on with the contract;
(4) An instruction to the jury that, if the plaintiff was entitled to recover, he was entitled to recover as damages the difference between what he would actually have received if the contract had been fully performed by him and what he did in fact receive, after taking into account as a deduction from the difference thus ascertained whatever benefit came to him by reason of being relieved from fully performing the contract, was proper;
The declaration in the action above described contained allegations in substance that the plaintiff had performed fully his part of the contract. The defendant seasonably raised the issue of variance between the declaration and the evidence by requests for rulings which were refused by the trial judge. Upon exceptions by the defendant after a verdict for the plaintiff, it was held, that, although there was a variance and the plaintiff was not entitled to recover on the declaration, nevertheless, since the issue on which a verdict had been rendered for the plaintiff appeared to have been fully and fairly tried, it seemed that he ought to have an opportunity to amend the declaration in order to make it conform to the evidence; and it was ordered that, if a motion by the plaintiff to amend were made and allowed by the trial court, the exceptions were to be overruled; otherwise they must be sustained.
CONTRACT. Writ dated March 23, 1927. The action was tried in the Superior Court before Weed, J. The plaintiff testified that he did not repaint the signs. The declaration, other material evidence, rulings by the judge and portions of his charge to the jury are described in the opinion. He denied a motion by the defendant that a verdict be ordered in his favor. There was a verdict for the plaintiff in the sum of $5,092.28. The defendant alleged exceptions.
The case was submitted on briefs. R.J. Talbot & R. Lasker, for the defendant.
G.F. Leary & G.D. Cummings, for the plaintiff.
This case was submitted to the jury on four counts, each setting out a separate contract in writing between the plaintiff and defendant. By each contract the plaintiff was obligated to paint and maintain, at many different locations to be approved by the defendant, outdoor advertising signs for a period of one year from "average date of completion" and to repaint the same at "the end of each six month period"; and the defendant was obligated to pay to the plaintiff specified monthly rentals "payable on or before the tenth of each month of billing." In each of these counts the plaintiff alleged that he "did in pursuance of said agreement paint said signs and maintain the same in accordance with the terms of the agreement, but that the defendant failed to pay the monthly rentals after the expiration of a few months." Other counts not submitted to the jury need not be considered.
The questions of law which arose as the case was tried and submitted to the jury first will be considered apart from those based on variance between the proof and the allegations in the declaration. The form of exception at the close of the charge, which is printed in full, was "to each of the acts and rulings of the court herein specified." No particular statement in the charge was pointed out as made the subject of exception. If directed to the charge at all, it was an exception to the whole charge. Under familiar principles, no exception to the charge is open to the defendant. Gibney v. Everson, 192 Mass. 228 , 231. Boston Conservatory of Music, Inc. v. Dulfer, 256 Mass. 262 , 266.
There was evidence tending to show that the defendant failed on each contract to make the payments required of it, so that at the end of the first "six month period" there was overdue an aggregate of about $3,000; that at about that time there was conversation between the plaintiff and representatives of the defendant to the effect that the plaintiff said that he could not repaint the signs unless and until the arrearages for rentals due under the contracts were paid, and that the cost of repainting would be about the amount thus overdue; that he could not finance...
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