Dudley v. Wye

• Decision Date: 25 May 1918
• Citation: 230 Mass. 350,119 N.E. 790
• Parties: DUDLEY v. WYE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 350

119 N.E. 790

DUDLEY

v.WYE.

Supreme Judicial Court of Massachusetts, Norfolk.

May 25, 1918.

Exceptions from Superior Court, Norfolk County; Franklin T. Hammond, Judge.

Action by Charles H. Dudley against William H. Wye. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

1. SALES k89-MODIFICATION OF CONTRACT-SUFFICIENCY OF EVIDENCE.

In an action for damages for failure to manufacture and deliver sweaters, evidence held to warrant finding that the original contract for 150 dozen of seven grades was modified by an agreement that 28 sweaters ordered later should be deemed to be a portion of the 150 dozen called for by the original order.

2. SALES k21-CONSIDERATION-FAILURE OF PART.

A failure of part of the consideration, regarded as the inducement to enter into the contract, as plaintiff's failure to pay for 28 sweaters out of 150 dozen ordered, was a failure of the whole consideration; the contract being entire.

3. SALES k99-BREACH BY PLAINTIFF.

Where plaintiff ordered from defendant, a manufacturer of sweaters, whose production was only about 25 dozen a week, 150 dozen for a price of about $9,000, and the contract was later modified to make 28 white and green sweaters, costing $127, a part of the order, but plaintiff did not pay for such 28 sweaters until the account had been overdue nearly a month, having excused his previous failures to pay by reference to poor collections, etc., plaintiff's breach went to the root of the entire contract, or the whole consideration, entitling defendant to cancel the order and refuse to perform.

William T. Atwood, of Boston, for plaintiff.

Phipps, Durgin & Cook, of Boston, for defendant.

DE COURCY, J.

This action was brought to recover damages for failure of the defendand to manufacture and deliver to the plaintiff a lot of Shaker knit sweaters; and the trial judge found for the defendant. The original contract, made February 14, 1916, was for one hundred and fifty dozen, made up of seven specified grades, embracing different sizes and colors, deliveries to be in July, August and September. The terms of the sale were thirty days credit with a discount of 3 per cent. on bills paid within ten days. Subsequently orders were given for eight white and for twenty green sweaters, to be made and delivered at once; and these were delivered on March 9 and 11. Certain correspondence followed, and the defendant on May 9 notified the plaintiff to consider the order for the fall canceled.

[1] 1. The judge specifically found that the contract of February 14 was modified by an agreement that the eight white and twenty green sweaters ordered later should be deemed to be a portion of the one hundred and fifty dozen sweaters called for by that original order. In our opinion there was evidence in the correspondence between the parties to warrant the finding. Before these orders were sent (february 28 and March 6) the plaintiff had been notified by the defendant that no more orders could be taken at the old prices; and an order sent February 25 had been returned. On March 7 the plaintiff expressly wrote the defendant to ‘take these (the green sweaters) from my summer order.’ In the defendant's reply appears, ‘* * * I absolutely refuse to accept any more orders * * * I will make the two orders for you the white and the green and shall deduct them from the original order.’ The plaintiff expressed no dissent from this, and these sweaters were made, delivered and accepted.

[2] The plaintiff having failed to sustain his contention that the orders filled March 9 and 11 were separate and distinct from the contract of February 14, now argues that these two items, even if considered as part of the original contract as modified, are severable from the original order. No such question of the divisibility of the contract appears to have been raised by the plaintiff before the auditor or the trial judge. But assuming that this contention were open it would not avail the plaintiff, under the findings of the court. There were seven different styles of sweaters specified in the original order, each style number indicating a certain weight and grade of garment. The twenty-eight special sweaters did not correspond with either of the seven kinds. While it was agreed that they should be regarded as a part of the modified original contract, the parties did not specify which of the seven styles they should be considered as taken from. They could only be taken from the contract as a whole; and the contract as modified was an entire one. A failure of part of the consideration, regarded as the inducement to enter into the contract, was a failure of the whole. Mersey Co. v. Naylor, 9 A. C. 434;Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366. Cases like Barlow Manufacturing Co. v. Stone, 200 Mass. 158, 86 N. E. 306, involving separable contracts, are not applicable.

2. The trial judge also found that:

‘Under this contract as so modified the sum of $36.67 became due on April 9, 1916, for the white sweaters and the sum of $90.83 on April 11, 1916, for the green sweaters; and that the plaintiff broke his contract in that he failed to pay these amounts until May 6, 1916, when he paid $123.67 and May 24, 1916, when he paid the balance $3.83.’

Plainly this finding was warranted by the evidence.

[3] 3. Upon the facts as found the judge ruled, that the plaintiff's breach of the contract was important enough to excuse the defendantfrom further performing the contract; and therefore...