Contract, Performance and breach. Practice, Civil, New trial. In an action for the alleged breach of a contract in writing, by which the defendant agreed to hire the plaintiff for the period of one year and to pay him $4 a day, and the plaintiff agreed "to use his best efforts to further the interests of" the defendant, where the plaintiff contends that the defendant committed a breach of the contract by discharging him at the end of six months, and the defendant contends that he was justified in terminating the contract because the plaintiff had broken it, the defendant may show a breach of the contract by the plaintiff by evidence of a series of omissions in performance, no one of which alone would constitute a substantial breach of the contract, and on such evidence it is a question for the jury whether the plaintiff had failed to perform his part of the contract substantially.
It seems, that one who, having previously been engaged in taking contracts for lathing houses, enters the employ of a lathing contractor under a contract by which he is to receive $4 a day and agrees "to use his best efforts to further the interests of" his employer, is not excused by an inability to read and write from an obligation to keep account of the times and amount of the work done by the men placed under him.
The denial of a motion for a new trial, asked for on the grounds that the verdict was against the law, that it was against the evidence, and that it was against the law and the evidence, where the judge in denying the motion stated that he did so as a matter of discretion and that no ruling of law had been made, affords no ground for exception.
BRALEY, J.
The stipulations of the parties to the contract were mutual and dependent, and, if after it had been partially executed the defendant by discharging the plaintiff made further performance impossible, he is liable in damages, unless the discharge could be justified on the ground of the plaintiff's defaults. Hodgkins v. Moulton, 100 Mass. 309. Hapgood v. Shaw, 105 Mass. 276. Earnshaw v. Whittemore, 194 Mass. 187, 192. Accordingly the question at the trial was whether the alleged omissions put in evidence by the defendant were a sufficient justification. It is settled that, while inadvertent or unimportant departures would not defeat the right of recovery, the plaintiff became bound to a substantial performance in furtherance of the objects intended to be accomplished. Eastern Forge Co. v. Corbin, 182 Mass. 590, 592. National Machine Tool Co. v. Standard Shoe Machinery Co. 181 Mass. 275.
The plaintiff, who had been engaged in taking contracts for lathing houses, and who seems to have acquired quite a patronage, which the parties intended should be transferred as far as possible to the defendant, engaged "to use his best efforts to further the interests of, to obtain work and contracts for, and to turn over all work that may come to him to, the said party of the first part." A general course of conduct which would enure to the defendant's benefit is here prescribed in unambiguous words. The defendant, never having been informed to the contrary, had the right to assume from the plaintiff's previous experience, that when placed in supervision of work contemplated by their agreement his business qualifications were sufficient to enable him to act efficiently. And the plaintiff, although testifying that he had faithfully complied with his obligations, does not contend that the defendant's orders, which the evidence tended to show he had not properly executed, or declined to execute because of inability to read or to write, imposed duties for the performance of which he had not contracted.
The true interpretation and construction of the contract, as urged by him, undoubtedly was for the court, and his counsel argue in their brief that the presiding judge should have so ruled. Globe Works v. Wright, 106 Mass. 207. Yet no request was made for a ruling that upon the evidence the defense as matter of law had not been made out. But, if asked for, the ruling could not have been given as the facts were in dispute. The jury were to determine whether the various acts of omission had been proved, and, if proved, they were further to decide whether when viewed as a whole, even if any one of them might have been insufficient, the defects in performance reasonably warranted the inference that the plaintiff would not or could not properly exert himself in the promotion of the defendant's interests. Chapman v. Coffin, 14 Gray, 454. Cabot v. Winsor, 1 Allen, 546. Cunningham v. Washburn, 119 Mass. 224. The instructions to which the plaintiff excepted carefully pointed out the nature of the evidence on which the defendant relied, and the judge having correctly ruled, that, while unsubstantial departures would not be enough, yet, if the jury were convinced that there had not been a substantial compliance with his promise, the plaintiff had broken his contract, the verdict for the defendant should not be disturbed.
A motion for a new trial is addressed to the discretion of the court, and unless rulings of law are made at the hearing the denial of the motion affords no ground of exception. Lopes v. Connolly, 210 Mass. 487.
The order of the judge comes within the rule, and it follows that on each branch of the case the exceptions must be overruled.
So ordered.