F.w. Stock & Sons v. Snell

• Decision Date: 29 January 1913
• Citation: 213 Mass. 449,100 N.E. 830
• Parties: F. W. STOCK & SONS v. SNELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 449

100 N.E. 830

F. W. STOCK & SONS v. SNELL.

Supreme Judicial Court of Massachusetts, Suffolk.

January 29, 1913

SYLLABUS

This was an action for breach of two contracts for the purchase of flour. The first count of the declaration set forth a contract made October 2, 1909, between plaintiff and defendant, and alleged that defendant refused to carry out the contract, and demanded damages for the breach, without asking for special damages. The second count set forth a contract made October 18, 1910, and alleged a breach thereof by defendant, and asked for damages, without asking for special damages. The third count was as follows:

And the plaintiff says that the defendant owes it seven hundred and fifteen and 15/100 ($715.15) dollars according to the account annexed.

'Account Annexed. 'Louis F. Snell to F. W. Stock & Sons, Dr. 1910 Item 1 June To loss on resale of 205 bbls. 'Mikota' flour at 15 $5.15 less .45 per bbl........................... $92 25 1911 Item 2 Feb. 1 ' loss on the resale of 615 bbls. 'Mikota' flour at $5.25 less .65 per bbl........................... 399 75 1910 Item 3 ' cost of reselling 205 bbls. 'Mikota' flour at .10 .. 20 50 Item 4 ' Demurrage on car refused ............................ 7 00 Item 5 ' protest charges on draft ............................ 2 02 Item 6 ' Expenses carrying flour 4 months over time 5 cents per bbl. monthly .20 ....................... 41 00 1911 Item 7 Feb. 1 ' Cost reselling 615 bbls. 'Mikota' flour at .10 ..... 61 50 Item 8 ' Protest charge on draft ............................. 2 02 Item 9 ' Interest 30 days, Dec.30, 1910 on car 5364 refused at 6% ..................................... 4 96 Item 10 ' Demurrage and freight to Boston .................... 84 15 ------- Item 11 $715 15

The defendant at the close of the evidence requested the following rulings:

'(3) That on the third count the plaintiff cannot recover and the verdict should be for the defendant.

'(4) That the plaintiff cannot recover under his third count for item 1 of the account annexed.

'(5) That the plaintiff cannot recover under his third count for item 2 in the account annexed.

'(6) That the plaintiff cannot recover under his third count for item 3 of the account annexed.

'(7) That the plaintiff cannot recover under his third count for item 4 of the account annexed.

'(8) That the plaintiff cannot recover under his third count for item 5 of the account annexed.

@'(9) That the plaintiff cannot recover under his third count for item 6 of the account annexed.

'(10) That the plaintiff cannot recover under his third count for item 7 of the account annexed.

'(11) That the plaintiff cannot recover under his third count for item 8 of the account annexed.

'(12) That the plaintiff cannot recover under his third count for item 9 of the account annexed.

'(13) That the plaintiff cannot recover under his third count for item 10 of the account annexed.'

COUNSEL

Herbert L. Baker and F. Keeler Rice, both of Boston, for plaintiff.

Charles H. Cronin, of Boston, for defendant.

OPINION

SHELDON J.

The rulings asked for by the defendant numbered from 3 to 13 inclusive should have been given. Not merely the first and second, but all the items in the account annexed to the third count of the plaintiff's amended declaration were particulars of special damages claimed by the plaintiff for the breach by the defendant of the two written contracts set out in the first and second counts. As these contracts had not been performed and the title to some of the goods described had never become vested in the defendant, the plaintiff could not recover upon his present claims in an action upon an account annexed. R. L. c. 173, § 6, cl. 8. The rule to be applied was stated by Shaw, C.J., in Moulton v. Trask, 9 Metc. 577, 580, and has been uniformly followed in our decisions. Morse v. Potter, 4 Gray, 292, 293; Stearns v. Washburn, 7 Gray, 187; Bowen v. Proprietors of South Building, 137 Mass. 274, 276; Field v. Banks, 177 Mass. 36, 58 N.E....