Wright v. Graustein
| Decision Date | 03 March 1924 |
| Citation | 142 N.E. 797,248 Mass. 205 |
| Parties | WRIGHT v. GRAUSTEIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division.
Action of contract by William H. Wright against Ida S. Graustein, to recover upon an account annexed for milk sold and delivered by plaintiff, and other persons who assigned their claims to him. From orders of the appellate division of the municipal court of the city of Boston granting a new trial and dismissing a report, the defendant appeals. Affirmed.
Set-off and counterclaim k59-Defendant not entitled to have excess of damages caused by plaintiff's breach of contract recouped as against assigned claims.
In an action upon an account annexed for milk sold and delivered by plaintiff and other persons, who assigned their claims to him before action commenced, defendant was not entitled to have any excess of damages caused by plaintiff's breach of contract, not necessary to offset and extinguish plaintiff's individual claim, recouped as against the assigned claims, in view of G. L. c. 231, s 5.
W. A. Graustein, of Boston, for appellant.
F. W. Campbell, of Boston, for appellee.
This action, brought in the municipal court of the city of Boston, is one in which the plaintiff seeks to recover in a declaration upon an account annexed, for milk sold and delivered by the plaintiff and seven other persons who assigned in writing their claims to him before the action was commenced. The plaintiff waived at the hearing in the municipal court items eight and ten in the account annexed.
The defendant's answer is a general denial, payment and recoupment. The answer in recoupment is that the defendant on or about April 1, 1916, entered into several oral contracts with the plaintiff and with each of his assignors, to wit: Edward T. Stevens, Dana H. Jennison, E. E. Putnam, Lynn W. Fullam, Ray D. Metcalf, W. W. Davis and Frank H. Farr, to purchase from each of said persons all the milk which they should produce on their farms respectively, between the first day of April and the first day of October, 1916; that the plaintiff and his assignors on or about May 3, 1916, severally refused to sell or deliver milk to the defendant; that the defendant has always been ready and willing to perform her part of said contracts and each and all of them with the plaintiff and his said assignors; and that by reason of said breaches of said contracts by the plaintiff and his assignors, the defendant has been greatly damaged in her business, and has suffered great loss, and claims to offset the amount of said damages, and by way of recoupment or counterclaim against the cause and causes of action alleged against her by the plaintiff.
The action comes before this court upon two appeals of the defendant from two orders of the appellate division of the said municipal court. The report of the first trial states that it contains all the evidence material to the issues and to the findings of the judge. It also states, and the defendant does not otherwise contend, that the defendant admitted at the trial the sale and delivery to her of the quantity of milk declared for in items one to seven and nine of the account annexed, and further states that the defendant at the trial did not question the quality of the milk of the validity of the several written assignments. After the trial and arguments, the judge found that the plaintiff and his assignors of the several claims sued on had made contracts with the defendant, in substance, to sell and deliver milk to the defendant from April 1 until October 1, 1916; that the plaintiff and his assignors refused and failed to deliver milk as agreed between May 3 and October 1, 1916; and found as a result of such failures that the defendant suffered damage which is specified in each contract, other than upon the contracts of Davis and Putnam, in excess of the respective claims and largely in excess of the plaintiff's combined claims. The judge found for the defendant and reported the case as requested by the plaintiff to the appellate division. That division ordered a new trial and the defendant duly appealed to this court.
The action of the appellate division was right. The reported evidence, which was all the evidence material to the findings of the judge, afforded no justification for the finding that ‘the plaintiff Wright and his assignors of the claim sued on * * * made contracts with the defendant to sell all the milk they produced,’ in the terms which are narrated in the first and second paragraphs of the findings of the judge.
At a second trial a judge found that the plaintiff was entitled to recover on account of the claims of Stevens, Putnam, Fullam, Metcalf, Davis and Farr the sum of $211.08; that Wright (the plaintif...
To continue reading
Request your trial
-
Gill v. Richmond Co-Op. Ass'n, Inc.
... ... Findings for defendant in the principal action and decree for defendant in the bill for injunction, and plaintiffs and William A. Graustein, as assignee of plaintiffs' cause of action, bring exceptions and appeal, and defendant brings exceptions.Order in accordance with opinion.[34 N.E.2d ... v. J. Mannos & Sons, Inc., 287 Mass. 304, 309, 310, 191 N.E. 438;Wright v. Graustein, 248 Mass. 205, 142 N.E. 797;Graustein v. Wyman, 250 Mass. 290, 145 N.E. 450;Titcomb v. Boy State Grocery Co., 254 Mass. 599, 150 N.E ... ...
-
Gill v. Richmond Co-op. Ass'n
... ... R. Hall, (F ... T. Iddings with ... him,) for the defendant ... W. A. Graustein, ... LUMMUS, J. On ... September 9, 1929, the four plaintiffs, brothers named Gill, ... brought this action of contract to recover ... Ordered ... accordingly ... --------- ... [1] Sherwin-Williams Co. v. J. Mannos ... & Sons, Inc. 287 Mass. 304 , 309-310. Wright v ... Graustein, 248 Mass. 205 ... Graustein v. Wyman, 250 Mass. 290 ... Titcomb v. Bay State Grocery Co. 254 Mass. 599 ... Gast v ... Boston ... ...
-
Lawson State Community College v. First Continental Leasing Corp.
... ... v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980).' Id. at 718." ... Wright" v. Robinson, 468 So.2d 94, 97 (Ala.1985); Kemp Motor Sales, Inc. v. Lawrenz, 505 So.2d 377 (Ala.1987) ... B. The Applicable Law ... \xC2" ... "Under prior law, an assignee of contract rights was not liable on the contract in the place of his assignor. Wright v. Graustein, 248 Mass. 205, 142 N.E. 797 (1924). Common sense requires that we not twist the 'precarious security' of an assignee into potential liability for ... ...
-
Michelin Tires (Canada), Ltd. v. First Nat. Bank of Boston
... ... Under prior law, an assignee of contract rights was not liable on the contract in the place of his assignor. Wright v. Graustein, 248 Mass. 205, 142 N.E. 797 (1924). Common sense requires that we not twist the "precarious security" 2 of an assignee into ... ...