Weed v. Draper , 104 Mass. 28 ( 1870 )

Wells, J

We perceive nothing, in the report of the case now brought up, to modify the conclusions to which we came at the former hearing as to the construction of the contract, and the rights and obligations of the parties under it. 99 Mass. 53. It was there held that the option, reserved to the plaintiff upon termination of the contract by the defendants, to take all machines on hand at its expiration, paying $140 each ; or to require the defendants to take them and pay the plaintiff $140 each ; applied only to machines that should be in actual existence at that time, either finished or in process of construction. As the defendants had failed to commence upon the manufacture, this provision for such option was rendered inoperative; and the decision of the court below was sustained, so far as the right of the plaintiff to recover the stipulated sum for each machine ordered was concerned. But as there appeared to have been a breach of the contract, in not proceeding to manufacture according to the order given, the case was remitted to a new trial, to give the plaintiff an opportunity to sustain his action upon proof of damages appropriate to that aspect of the case. The damages have now been assessed, and we have to consider several exceptions of the defendants, both to the assessment of damages and to the maintenance of the action.

1. It is contended that the damages are not appropriate, because they were assessed as if the machines had been required for delivery upon sales by the plaintiff; whereas he had elected not to take any macnines ordered by him, and thereby abandoned all claim for such damages, and relied wholly upon his supposed claim under the option clause. The answer to this objection is, that the provision of the contract securing this option to the plaintiff was defeated by a previous breach of the contract, in its main purpose, by the defendants. An attempt to avail himself of that option, in a state of facts under which it did not exist, could not deprive the plaintiff of his remedy for a general breach of the contract.

His election, under such circumstances, to take his damages in the form in which he supposed they were thus secured to him, cannot be treated as conclusive evidence that he did not want the machines for sale; nor that they would not have been worth to him more than the sum found as the increased cost of manufacture, with reference to which the damages were assessed. The effect of that election, as a matter of fact, was for the consideration of the judge who tried the case, and his conclusion upon it is final.

2. As a matter of pleading, the defendants contend that such damages cannot be recovered under this declaration, because it is framed only for the recovery of the stipulated sum under the option clause. No such question .appears to have been raised at the trial; and therefore it ought not to avail here, if the judgment can properly stand upon the pleadings. Burnett v. Smith, 4 Gray, 50. Whittaker v. West Boylston, 97 Mass. 273. As the case has been tried upon the general merits, it would be proper, even at this stage, to allow an amendment which would adapt the pleadings to the judgment to be entered. Nichols v. Prince, 8 Allen, 404. Colton v. King, 2 Allen, 317. But, upon examining the declaration, we are satisfied that there is a general breach alleged, of so much of the contract as relates to the manufacture of the twelve machines ordered, and in reference to which alone these damages were assessed. The allegation is, (after reciting the order for twelve additional machines,) “And the defendants wholly neglected and refused to build the said twelve according to the plaintiff’s order and the terms of said contract, and did wholly neglect and refuse to do so up to the termination of said contract and ever since.” The succeeding allegations, necessary to avail of the stipulated sum, under the option clause, as the damages in the case, do not destroy the effect of this general allegation of a breach of the contract.

3. The stipulation that “ said Weed is to furnish one set of patterns, and only one set of patterns, free of expense to, saie firm,” is not distinctly made, by the form of the contract, a corn dition precedent to the obligation of the defendants to commence upon the manufacture of machines ordered. The report of the case does not show that it was found by the judge that the furnishing of “ pulley patterns ” was a necessary precedent act to the commencement of the work of manufacture. This court has no means, and it is not its province, to determine that question of fact. The report states that the defendants did not “ decline to build .them on this ground when ordered, but on the ground of an advance in the price of labor and stock.” We observe also that the defendants have not set up this ground of defence in their answer. The objection to a recovery on this ground cannot therefore prevail.

4. The alleged danger of manufacturing and selling these machines, on account of a supposed infringement upon the patent rights of Churchill & Hatch, cannot avail the defendants. Their contract contemplated the probability that claims of that nature would be asserted, and provided that Weed should hold them harmless against them. The case does not show that they were prevented from performing their contract; nor that the rights of Churchill & Hatch were paramount, so as to justify their withdrawing from the performance of it; nor that Weed has in any respect failed to fulfil his part of the stipulation to save them harmless.

5. As the judge has found that “ there was a demand for these machines in the market in 1864, at the price of $300; ” and as the plaintiff would have been entitled to require the defendants to take them and pay him $140 each for them, if they had been constructed according to the terms of the contract, we can see no ground upon which any exception can be sustained to the measure of damages adopted by the court below.

6. Regarding the letter of June 22 as the formal notice of termination of the contract, and the plaintiff’s letter of May 18 as an order for twelve additional machines, the defendants were pound, notwithstanding their notice, to continue to manufacture, under that order, up to the end of the time fixed for the termination of the contract; to wit, until the expiration of four months; making five months in all from the date of the order The contract required them, in the execution of such an order, to build two of the machines “ each month thereafter.”

Upon these considerations, we are satisfied that the decision of the superior court ought to be sustained.

Exceptions overruled.