Centennial Elec. Co. v. Morse

• Decision Date: 29 June 1917
• Citation: 116 N.E. 901,227 Mass. 486
• Parties: CENTENNIAL ELECTRIC CO. v. MORSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 486

116 N.E. 901

CENTENNIAL ELECTRIC CO.

v.MORSE.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1917.

Exceptions from Superior Court, Suffolk County; Jabez Fox, Judge.

Action by the Centennial Electric Company against Frank W. Morge.Plaintiff and defendant except to rulings.Plaintiff's exceptions overruled in part, and sustained in part.Defendant's exceptions overruled.

John J. Cummings, of Boston, for plaintiff.

A. M. Schwarz and S. A. Dearborn, both of Boston, for defendant.

CARROLL, J.

This is an action of contract.There were two trials, and there are three bills of exceptions.At the first trial the plaintiff recovered a verdict on the three counts of its declaration.The plaintiff sold the defendant 45,000 electric lamp bulbs, all of which, with the exception of 23,000, were delivered to him.The first count is for damages in the sum of $1,115 for the failure of the defendant to receive them.The second count is on a promissory note for $372, being one of a series of notes given by defendant for the goods sold.The third count is on an account annexed for lamp bulbs to the value of $187.80.At the second trial the third count was so amended as to recover the same amount at the agreed price of $187.80.

The verdict at the first trial was set aside on the motion of the defendant and a new trial ordered on the question of damages, ‘unless the plaintiff remits so much of the verdict as is in excess of the sum of $610, within twenty days from date,’ the judge giving as his reason for granting the motion.‘There was no sufficient ground for a verdict on the first count.’To this the plaintiff excepted.At the second trial the judge directed a verdict for the defendant on the first count, to which ruling and the ruling excluding certain evidence, the plaintiff excepted.At the second trial the defendant excepted to the exclusion of certain evidence offered by him and to the allowance of the amendment to the third count.

The plaintiff's exception taken at the first trial to the allowance of the defendant's motion asking the court to set aside the verdict must be overruled.The granting of a new trial is a matter of discretion and is not the subject of an exception.Lopes v. Connolly, 210 Mass. 487, 495, 496, 97 N. E. 80,38 L. R. A. (N. S.) 986;Ramsay v. Le Bow, 220 Mass. 227, 107 N. E. 926;Loveland v. Rand, 200 Mass. 142, 85 N. E. 948;Parker v. Griffith, 172 Mass. 87, 51 N. E. 462.In deciding there was no sufficient ground for the verdict on the first count, the judge did not make a ruling of law.The statement of his reasons under St. 1911, c. 501, for setting aside the verdict, was merely a recital that there was no sufficient ground in point of fact for such a verdict as was rendered on the first count, and it was against the evidence and the weight of the evidence.SeeEdwards v. Willey, 215 Mass. 363, 105 N. E. 986;Ramsay v. Le Bow, supra;Welsh v. Milton Water Co., 200 Mass. 409, 411, 86 N. E. 779.

[2] At the second trial the plaintiff offered to show that from July 25, 1913, to August 1, 1914, the market price of these lamps was 10 cents, or 5 cents less than the contract price, at which price of 10 cents the plaintiff sold the lamps in July, 1914.The defendant, on July 10, 1913, wrote the plaintiff referring to the 23,000 lamps or bulbs for which it sought damages under the first count, saying:

‘I shall have to ask you not to send me any more of the miniature or candelabra base bulbs until we have an agreement regarding prices, for I cannot afford to pay you 15 cents and assume so large a quantity at once, when I can buy them for practically the same price, as I want them.’

The miniature and candelabra bulbs spoken of in this letter are the 23,000 lamp bulbs involved in the first count.July 21, 1913, the plaintiff wrote saying:

‘If you cannot use the lamps at these prices, I will dispose of them elsewhere, as I can easily do so at better prices than quoted you.’

The plaintiff knew, on receipt of the letter of July 10, that the defendant had repudiated the contract and had refused to receive the remaining bulbs.The plaintiff then had a right of action against him because of his breach of the agreement and the measure of its damages must be determined as of that date.The plaintiff could not delay until there was a change in the market, and place the loss upon the defendant.Its duty was to be reasonably active to save itself from loss.Hall v. Paine, 224 Mass. 62, 65, 112 N. E. 153;Collins v. Delaporte, 115 Mass. 159, 162;Stock v. Snell, 213 Mass. 449, 453, 100 N. E. 830.There was no evidence that the plaintiff sufferedany substantial loss by the defendant's refusal, because there was nothing to show that the market price at the time was any less than the contract price; in fact, it offered to show that ‘from April 1, 1913, to July 25, 1913, the market price of the lamps which had been delivered to the defendant was the same as the contract price,’ and in its letter of July 21, 1913, admitted that the market price was higher than the contract price, when it says:

‘If you cannot use the lamps at these prices, I will dispose of them elsewhere, as I can easily do so at better prices than quoted you.’

The evidence of the market price from July 25, 1913, to August 1, 1914, was properly excluded.

The condition of the market for these goods from July 25, 1913, to August 1, 1914, was not material, and as the defendant has not shown any substantial loss, it is not entitled to recover substantial damages on the first count.

[3][4] There was, however, evidence that the defendant broke the contract in refusing to receive the merchandise purchased, and for...