Hughes v. Rendle Corp.

• Decision Date: 26 April 1930
• Citation: Hughes v. Rendle Corp., 271 Mass. 208, 171 N.E. 236 (Mass. 1930)
• Parties: HUGHES v. RENDLE CORPORATION.
• Court: Supreme Judicial Court of Massachusetts

271 Mass. 208

171 N.E. 236

HUGHES

v.RENDLE CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

April 26, 1930.

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.

PIERCE, J.

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: ‘This agreement made this 11th day of April, A. D. 1927, by and between The Rendle Corporation of Chelse, Mass. of the first part, and John R. Hughes & Sons of Charlestown, Mass. of the second part, witnesseth: That the party of the first part, for the consideration hereinafter mentioned, agrees with the party of the second part to perform in a faithful and workmanlike manner, the following specific work, viz: To lighter all cement arriving at the Army Base during the year 1927 intended for the Boston Elevated Railway, to their George Street Yard at Charlestown and store the same in their cement shed thereon. The party of the first part agreed to assume all responsibility for the delivery in good condition of all cement delivered in good condition and stored on their lighter. The party of the second part agrees to notify the party of the first part fourteen days prior to the expected arrival of a shipment at the Army Base. It is further agreed between both parties that a bag of cement shall be assumed to weight ninety-five and one half (95 1/2) pounds. And the party of the second part agrees with the party of the first part, in consideration of the faithful performance of the above specified work, to pay to the party of the first part, the sum of eighty-five cents (85¢) per ton of two thousand pounds (2000#) as follows: Payment in full within five days from final delivery of each shipment at the Boston Elevated Railway Yard.’

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 notice, in accordance with the terms of the contract, notifying ...