Ellis v. Nowell , 198 Mass. 367 ( 1908 )

Sheldon, J.

It is plain that the judge could not have ruled that the plaintiff was not entitled to recover. The defendant by his lease to O’Brien determined and ended the plaintiff’s rights under the written contract between the parties; there was evidence and the judge must have found that the plaintiff’s assent to this lease was conditional upon suitable arrangements being made for the plaintiff, and that this was not done. Accordingly the plaintiff was entitled to recover at least nominal damages.

The second and fourth requests are disposed of by the finding that the plaintiff was not in default or arrears.

As to the third request, the judge seems to have considered in assessing damages only the plaintiff’s contract with Gill. There was evidence that the plaintiff had made his offer to Gill before he knew of the defendant’s intention to lease the premises, but that Gill did not accept the offer until after the defendant had told the plaintiff that he was going to sign the lease. But the plaintiff, after his talk with the defendant, might well have expected the defendant to comply with the obligation of his contract by making suitable arrangements in the projected lease to protect the plaintiff's rights; the lease apparently was not executed until after the plaintiff’s contract with Gill had been closed; and on the judge’s finding the plaintiff did not receive notice of the termination of his agreement before the contract with Gill was made. Accordingly the third request was not applicable to the case, and was rightly refused. There is nothing in the bill of exceptions to show what rules the judge adopted for the assessment of damages, or whether anything was allowed for loss of profit under the Gill contract. It does not appear that any erroneous ruling was made on this question.

Exceptions overruled.