Farwell v. Solomon

49 N.E. 738, 170 Mass. 457, 1898 Mass. LEXIS 248

• Court: Massachusetts Supreme Judicial Court
• Decided: March 2, 1898
• Status: Published

Opinion

Allen, J.

The defendant’s bill of exceptions does not state in detail any facts found by the court, but only the evidence and the general finding upon the whole case. This general finding may have rested upon any view of the facts warranted by the evidence. It is obvious that the books ordered were of use only to the defendant, and it appeared that on two occasions he accepted portions of the whole number ordered to be printed, and that on the occasion of the last such acceptance, 93,000 copies more were in readiness for delivery; and the defendant testified that after this last delivery he stopped the plaintiff’s intestate from printing more copies. The only exceptions taken by the defendant are to the refusal to give two rulings which were requested. The first request was properly refused, because under the circumstances disclosed it was not necessary to make an actual delivery or tender of the books to the defendant. Middlesex Co. v. Osgood, 4 Gray, 447. Goddard v. Binney, 115 Mass. 450. Folsom v. Cornell, 150 Mass. 115, 119. The second request was also rightly refused, because it rested on the assumption that a time for the completion of the books was specified in the contract, but this assumption is not borne out by the bill of exceptions.

Exceptions overruled.