National MaChine & Tool Co. v. Standard Shoe MaChine Co.
| Decision Date | 19 May 1902 |
| Citation | 181 Mass. 275,63 N.E. 900 |
| Parties | NATIONAL MACHINE & TOOL CO. v. STANDARD SHOE MACHINE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. N. Buffum, for plaintiff.
Elder Wait & Whitman, for defendant.
This is an action of contract upon one or two small claims and for the breach of a contract made in March, 1900, by certain letters, in which the plaintiff undertook to manufacture certain portions of a patented machine, according to a schedule attached to the defendant's order. This last is the main source of trouble. With regard to payment the plaintiff wrote: 'If you should favor us with an order for a considerable number of these parts, we would bill them up to you as they were finished, and would merely ask that the bills be settled promptly as they came to you.' At a later stage of the negotiation the plaintiff wrote that it should expect the defendant 'to arrange it so that the bills would be approved promptly, and payment made on same at once, so that we may expect payments coming in rapidly after we have got well started on the contract thus preventing us from having too large an amount of money tied up in the work.' In this letter the plaintiff also wrote that it expected the defendant 'to fully protect us from any suits that might be brought against us while we are on this work, on account of patents.' It is denied that this letter was a part of the contract. We see no sufficient reason for the denial.
About May 1, 1900, the plaintiff was sued and demanded a bond with surety, as protection under its agreement. The defendant agreed to give a bond but on May 21 declined to furnish a surety, and this is relied on by the plaintiff as one breach of the defendant's undertaking. We think it so plain that the defendant was not bound to give a surety that we dismiss this part of the case without further mention.
On May 17, 1900, the plaintiff, having finished one item on the defendant's order, of sixty adjusting screws, sent a bill for the price, ninety dollars. The bill bore a stamped notice that 'all claims for corrections in this bill must be made within ten days from date.' It was understood by the plaintiff that if the bill was approved by the proper man it would be sent on to New York to be paid. Three or four days later there was a conversation in the defendant's Boston office, it was suggested that this bill ought to be paid immediately on presentation and complaint was made with regard to another overdue account of nearly seven hundred dollars ($697.23). There were apologies and further delays, complaints and explanations, the defendant's representative always explaining the delay as accidental, and finally, on May 28, stating that the check was ready but had been retained for entry as the bookkeeper was away. This last seems to have been true. On May 29, the plaintiff, hearing that a check had not come on, notified the defendant that 'as you have not lived up to your agreement with us in relation to the work we are doing for you, we shall stop all of your work to-day,' and stopped. Later efforts to come to an understanding failed.
The plaintiff when it stopped work had finished another small item of twenty-four dollars, and on May 31 offered to deliver these goods as well as those for which the bill for ninety dollars had been sent, but the defendant declined to receive them. May 31 was the date of the writ, and the plaintiff very candidly says that the offer was made after suit was brought. The plaintiff seeks to recover as damages for the defendant's alleged breach the cost of the finished parts, and also the value of stock and castings and a large amount of work upon parts never delivered or completed.
The case was sent to an auditor. He found that the defendant did not repudiate the contract, and that the delay in payment did not justify the plaintiff in stopping work. The judge of the Superior Court adopted his rulings and findings, although finding in addition that the provision for prompt payment of bills for finished work was material, and that payment was not made promptly, and expressing a doubt whether the plaintiff was not justified in refusing to proceed.
Although the contract was not repudiated by the defendant, we are of opinion notwithstanding Winchester v. Newton, 2 Allen, 492, which perhaps was not intended to establish a different general rule (see, also, Newton v. Winchester, 16 Gray, 208), that there might have been such a breach by failure to pay, as, however honest, and however little it expressed a repudiation, would warrant a refusal to go on with the work. Bloomer v. Bernstein, L. R. 9 C. P. 588. See Stephenson v. Cady, 117 Mass. 6. There is nothing to the contrary in Daley v. Association, 178 Mass. 13, 18, 59 N.E. 452. What is said there refers to an attempt to avoid a contract ab initio for a refusal to pay money due upon an executed consideration, when to make that payment is all that remains to be done on that side.
We may say further that for the purposes of this decision it is not necessary to consider Lord Selborne's somewhat sweeping suggestion in Iron Co. v. Naylor, 9 App. Cas. 434, 439, that when delivery of an instalment of goods under an entire contract is to precede payment for the goods delivered, as payment cannot be a condition precedent of the entire contract, it cannot be a condition precedent to the deliveries remaining to be made, at least without express words. See Norrington v. Wright, 115 U.S. 188, 210, 6 S.Ct. 12, 29 L.Ed. 366. In this case both parties have assumed that the plaintiff could put the defendant in default without delivery merely by sending a bill for an item when it was finished, so that Lord Selborne's logical difficulty, if there is anything in it, does not apply.
The question before us therefore is whether the defendant's failure to pay ninety dollars promptly was a breach going to the root of the contract,--a breach so important as to warrant the plaintiff in refusing to go on. My brother LORING and I have not been able to reach a clear conviction that it was such a breach in view of the smallness of the sum, the indefiniteness of the term of the contract, the shortness of the delay, and some other circumstances. Of course not every trifling breach of contract excuses the other side from further performance. Honck v. Muller, 7 Q. B. Div. 92, 100; Iron Co. v....
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