Shawray Plastic Corp. v. Win-Ett Plastics, Inc.

6 Mass. App. Dec. 58

• Court: Massachusetts District Court, Appellate Division
• Decided: October 16, 1953
• Docket: No. 354642
• Status: Published

Opinion

Keniston, C. /.

This is an action of contract to recover $1,322.90 for goods sold and delivered. The answer so far as relied upon by the defendant was failure to perform a condition precedent by the plaintiff; and breach of contract by the plaintiff.

The defendant’s testimony so far as material to this report was to the effect that the sale of certain rotogravure patterns, for which the plaintiff seeks to recover the unpaid balance, was contingent upon the delivery of certain surface patterns ordered by the defendant of the plaintiff and which were never delivered.

The defendant testified that the acceptance of the two orders for the surface patterns, amounting together to 5,000 yards, was contingent upon the plaintiff’s receiving orders for not less than 25,000 yards, which the defendant never received. The court by a special finding decided this contention to be true.

The report states "that all the other merchandise (other than the surface patterns) ordered by the defendant had been shipped and received and that the balance due for the same was as claimed in the declaration.”

The court’s special finding would seem to dispose of the defendant’s defense irrespective of the two requests that the court denied and by the denial of which the defendant claims to be aggrieved.

This report was called for oral argument following the arguments on case No. 3558x8 between the same parties which was a cross-action by the defendant in this action as plaintiff against the plaintiff in this action for damages for breach of contract in failing to deliver the surface patterns upon the same facts, the two cases having been tried together on the merits and Win-Ett Plastics, Inc., claiming a separate report in each case.

At the hearing of the oral arguments in the instant case the Win-Ett Plastics, Inc., as appellant stated it had no ground for its report and asked that it be allowed to waive its claim of report.

We agree with the appellant that there is no basis for the claim of report.

We find no error in the court’s rulings upon the defendant’s requests.

Report dismissed.