Wright v. Graustein
| Decision Date | 28 February 1924 |
| Citation | 248 Mass. 205 |
| Parties | WILLIAM H. WRIGHT v. IDA S. GRAUSTEIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 11, 1923.
Present: RUGG, C.
J., BRALEY, CROSBY PIERCE, & CARROLL, JJ.
Assignment, Right of counter claim against assigned claim. Damages, In recoupment.
In an action of contract by one, both as an individual and as an assignee of claims of several persons, for milk sold and delivered to the defendant by the plaintiff and his assignors, a judge of a municipal court found that the plaintiff and his assignors had made contracts with the defendant to sell to him all the milk they produced and had broken those contracts, causing damage to the defendant. The Appellate Division ordered a new trial. The record disclosed no evidence of the express contracts, which the judge had found to exist. Held that the order of the Appellate Division was warranted.
An action of contract was upon an account annexed, one of the items of which was for milk sold and delivered by the plaintiff personally to the defendant. The defendant was entitled by reason of a breach of the contract of sale to have the plaintiff pay him damages in an amount in excess of the claim shown by this item. Other items of the declaration were based upon claims for milk sold and delivered to the defendant by other persons, who had assigned their claims to the plaintiff. The defendant had no claims against such persons for breach of the contracts of sale. Held, that the defendant was not entitled to recoup against the claims so assigned to the plaintiff the excess of the damages, sustained by him by reason of the plaintiff's breach of contract, over the amount necessary to discharge the plaintiff's individual claim.
CONTRACT upon an account annexed described in the opinion. Writ in the Municipal Court of the City of Boston dated October 5, 1916.
Proceedings evidence, and facts found at the trials in the Municipal Court, and successive orders by the Appellate Division are described in the opinion. From orders directing a new trial after the first trial and dismissing a report after the third trial, the defendant appealed.
W. A. Graustein, attorney in fact for the defendant. F. W. Campbell, for the plaintiff.
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. Jenson, 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 or 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...
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