Hanson & Parker v. Wittenberg
| Decision Date | 25 February 1910 |
| Citation | 91 N.E. 383,205 Mass. 319 |
| Parties | HANSON & PARKER, Limited v. WITTENBERG et al. (two cases). WITTENBERG et al. v. HANSON & PARKER, Limited. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Alfred B. White, for Hanson & Parker, Limited.
Lee M Friedman and Morse & Friedman, for Wittenberg.
The only evidence introduced at the trial was the auditor's report, and his findings of fact evidently having been affirmed by the judge, who tried the case without a jury, the questions raised by the exceptions rest upon the refusals to rule, and the rulings, as to the effect of the evidence. Beers v. Wardwell, 198 Mass. 236, 84 N.E 306. During the period covered by the transactions the plaintiff corporation was engaged as a jobber in selling coal at wholesale, with its principal office in Boston. If occasional sales were made elsewhere, the bulk of its trade was supplying customers within the territory of which the city is described in the report as the usual commercial center of distribution. After verbal negotiations, it entered into two contracts in writing with the defendant Wittenberg who resided and did business in another state, for the delivery of 10,000 tons of 'steam coal' under each contract. The coal was to be delivered at Newport News, Va., by the railroad as directed by the seller, free on board vessels sent by the buyer, by whom the expenses of transportation were to be paid. By the first contract, an option as to the kinds of coal was given, and although the second contract omits this clause, the auditor reports that the plaintiff contracted only for 'New River coal,' which the defendant engaged to furnish. In the performance of the first contract, the defendant concedes that the shipments were not of the kind selected, but the cargoes were composed of a mixture of New River coal and Kanawha coal, in which the latter largely predominated. Upon arrival of the first cargo, a part was discharged before the plaintiff ascertained its inferior quality. Interviews followed between the parties, but no adjustment of their differences was reached, and the defendants' agent having stated that the remaining cargoes in transit were similar, the plaintiff notified the defendant it would not accept them. Because of the failure to comply with the terms of the first contract, the corporation recalled the vessel it had sent for the small balance remaining of the first purchase, and for the coal to be shipped under the second contract, and claimed as a defense, in the suit against it by Wittenberg for damages for the refusal to perform, that this contract had been canceled. The contracts, as the judge ruled, no doubt were distinct, and not dependent. Turner v. Rogers, 121 Mass. 12. If the first had been broken by the seller, it did not follow he would commit a breach of the second contract, although a refusal to perform would have justified an immediate rescission by the plaintiff. Daniels v. Newton, 114 Mass. 530, 533, 19 Am. Rep. 384; Menage v. Rosenthal, 187 Mass. 470, 73 N.E. 537. But while his conduct tended strongly to weaken confidence in his intention to keep a similar agreement in the future, the plaintiff's anticipation of nonperformance, however reasonable under the circumstances, would not have been a justification for its rescinding or repudiating the second contract. Porter v. American Legion of Honor, 183 Mass. 326, 67 N.E. 238. An executory bilateral contract, however, may be rescinded or canceled by mutual consent of the parties. They may discharge it in part by a new agreement, modifying its terms, or agree to abrogate it, so that both will be discharged from performance. The original consideration supports the modification, while the agreement of each to annul is a sufficient consideration for an abandonment. Earnshaw v. Whittemore, 194 Mass. 187, 191, 80 N.E. 520, and cases cited; Cutter v. Cochrane, 116 Mass. 408, 410. But where, as in the present case, the parties are not in accord as to what was done, whether they have reached such an understanding is a question of fact. Johnson v. Reed, 9 Mass. 78-84, 6 Am. Dec. 36; Cutter v. Cochrane, 116 Mass. 408, 410; Hobbs v. Columbia Falls Brick Co., 157 Mass. 109, 31 N.E. 756. In proof of consent to rescission, it is competent to show acts, declarations, and motives of the parties. If it appears there has been an advance in price, or the commodity cannot be obtained easily in the market, these facts may furnish evidence, that it was not for the interest of the seller to insist upon performance. Smith v. Glover, 50 Minn. 58, 52 N.W. 210, 912; Chouteau v. Jupiter Iron Works, 94 Mo. 388, 7 S.W. 467. The auditor, who saw the witnesses and heard the evidence, reports that, although Wittenberg neither expressly assented nor dissented, he did not protest at the time, but remained silent until the period of performance had elapsed. In the meantime, the market price had advanced beyond the contract price, and New River coal had become scarce, or could not be obtained. In view of his attitude and these conditions, he finds the seller acquiesced, and the second contract was cancelled by mutual consent. The judge, having been warranted in finding accordingly, rightly refused to give the plaintiff Wittenberg's thirty-first and thirty-second requests, and having found for the defendant, the fourth and fifth requests became immaterial.
The remaining exceptions relate wholly to the measure of damages recoverable in the suits against him, for failure to perform the first contract. The ordinary rule, which often has been stated, is that, where the seller fails to deliver, the buyer can recover for breach of the promise the difference between the contract price and the market value at the place of delivery of the goods, wares or merchandise at the time the contract is broken. In mercantile transactions, this difference generally will measure the actual loss sustained. But as damages are assessed as compensation, the amount awarded should be such as the parties at the time of...
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