Pleading, Civil, Declaration: account annexed, special damages. Damages, In contract: special. Practice, Civil, Verdict, New trial.
Under R.L.c. 173, § 6, cl. 8, a plaintiff cannot recover under an account annexed for the breach of an executory contract to buy certain goods from the plaintiff, but must declare specially.
In an action of contract to recover damages for the failure of the defendant to receive and accept certain goods which the defendant had ordered in writing and agreed to buy from the plaintiff, where no special damages are alleged, the measure of damages is the difference between the contract price of the goods and their market value at the time and place where they were to have been delivered.
In an action of contract to recover damages for the breach of an executory contract, where the declaration contains a special count on which the plaintiff is entitled to recover and a count on an account annexed on which he is not entitled to recover, and, the case having been submitted to the jury on both counts, a general verdict is returned for the plaintiff, exceptions of the defendant will be sustained and a new trial will be granted, because it cannot be known on which count the verdict was returned.
SHELDON, J.
The rulings asked for by the defendant numbered from three to thirteen inclusive should have been given. Not merely the first and second, but all the items in the account annexed to the third count of the plaintiff's amended declaration were particulars of special damages claimed by the plaintiff for the breach by the defendant of the two written contracts set out in the first and second counts. As these contracts had not been performed and the title to some of the goods described had never become vested in the defendant, the plaintiff could not recover upon his present claims in an action upon an account annexed. R.L.c. 173, § 6, cl. 8. The rule to be applied was stated by Shaw, C.J., in Moulton v. Trask, 9 Met. 577, 580, and has been uniformly followed in our decisions. Morse v. Potter, 4 Gray, 292, 293. Stearns v. Washburn, 7 Gray, 187. Bowen v. Proprietors of South Building, 137 Mass. 274, 276. Field v. Banks, 177 Mass. 36.
No special damages were alleged in the first or second counts, and accordingly the measure of damages under each of these counts was the difference between the contract price and the market price of the flour refused by the defendant at the respective times and places at which it was to have been delivered. Tufts v. Bennett, 163 Mass. 398. Barrie v. Quinby, 206 Mass. 259, 268.
Much of the plaintiff's argument is irrelevant. The bill of exceptions contains the material evidence introduced at the trial, as was not the case in Wade v. Smith, ante, 34. And, as the third count should not have been submitted to the jury at all, cases like Khron v. Brock, 144 Mass. 516, give the plaintiff no comfort.
It may be that the verdict was justified under the first and second counts; but it was a general one, and we cannot tell upon what counts it was rendered, or what items, other than the first and second of the account annexed to the third count, were included in it. Lynch v. Allyn, 160 Mass. 248, 255. Fairman v. Boston Albany Railroad, 169 Mass. 170, 178. Hagar v. Norton, 188 Mass. 47, 51. Accordingly there must be a new trial.
As both the pleadings and the evidence may be different at another trial, we do not deem it expedient to attempt to settle now the other questions which have been raised.
Exceptions sustained.