Contract, Performance and breach. Damages. At the trial of an action for breach of a contract in writing, it appeared that by the contract the defendant permitted the plaintiff to quarry stone from a ledge of the defendant and to crush it for sale, and that the contract might be terminated by four months' notice in writing by either party to the other. Without giving such notice, the defendant told the plaintiff that he was going to lease the premises to another, to which the plaintiff gave his assent on the condition that suitable "arrangements" should be made for him. The defendant leased the premises, but there were no "arrangements" made for the plaintiff. Held, that the plaintiff had not assented to the lease, and that the defendant had broken the agreement.
At the trial of an action for breach of a contract whereby the defendant permitted the plaintiff to extract stone from a ledge owned by him, it appeared that the defendant had broken the contract by leasing the premises containing the ledge to another without giving to the plaintiff a notice called for by its terms, and there was evidence tending to show that, just before executing the lease, the defendant had told the plaintiff that he was going to make it, that at that time negotiations were pending between the plaintiff and one G. for the sale to G. of stone which the plaintiff was to take from the defendant's ledge, that, after the defendant told the plaintiff of his intention, but before he actually made the lease, the plaintiff and G. made a contract, and that the plaintiff could not get elsewhere stone with which to fill the contract with G. at a profit. Held, that in assessing damages it was proper to take into consideration the contract with G. which the defendant had made it impossible for the plaintiff to perform at a profit.
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.