Hughes v. Rendle Corp.
Decision Date | 26 April 1930 |
Citation | 171 N.E. 236,271 Mass. 208 |
Parties | HUGHES v. RENDLE CORPORATION. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division; C. L. Carr, Judge.
Action by John R. Hughes against the Rendle Corporation. From an order of the appellate division, of the municipal court denying petition to establish truth of its report, and from final decision ‘report dismissed,’ defendant appeals.
Reversed, with directions.
1. Shipping k113-Lighterage-Indivisible contracts.
Contract to lighter and store all cement arriving for promisee during year at so much per ton held indivisible contract.
2. Shipping k113-Lighterage-Indivisible contract-Breach-Excused performance.
Failure to pay $168.23 of $568.23 due within five days for lightering cement was breach of indivisible contract warranting refusal of further performance.
The contract provided that promisor should lighter and store all cement during a certain year that should be delivered for promisee, and promisee agreed to pay so much per ton within five days of delivery.
C. S. Sullivan and J. Burke, both of Boston, for appellant.
P. A. Hendrick and E. D. Hassan, both of Boston, for appellee.
This is an appeal by the defendant from the denial by the Appellate Division of the Municipal Court of the City of Boston of the petition to establish the truth of its report, and from the final decision, ‘report dismissed.’
The action is one of contract in which the plaintiff seeks to recover damages from the defendant for a breach of a written contract to lighter and store certain cement. The case was tried before a judge of the Municipal Court and a finding was made in favor of the plaintiff. Thereafter, within the time allowed, the defendant filed a motion for a new trial. This motion was allowed on certain conditions, which the defendant refused to accede to. Thereupon the defendant filed a ‘Request for Report’ and a ‘Draft Report.’ The report was disallowed by the trial judge.
The contract for the breach of which the plaintiff was allowed damages, reads as follows:
At the trial there was evidence that the first load of cement under this contract was delivered by the defendant at the George Street yard of the Boston Elevated Railway in the period between April 15 and April 25, 1927; that the last of the first shipment was delivered on the twenty-third day of April, 1927; that the amount due the defendant under the terms of the contract for this first shipment was $568.23; that on April 22, 1927, the plaintiff paid the defendant $400, leaving a balance of $168.23 unpaid on the first shipment and due within five days from April 23, 1927, the date of the final delivery of that shipment; that on or about April 29, 1927, the plaintiff sent a written...
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