
    Lewis Zorzy vs. Edward J. Whitney, Sr.
    Penobscot.
    Opinion, October 14, 1958.
    
      Pilot, Pilot & Collins, for plaintiff.
    
      R. A. Weatherbee, Rudman & Rudman, for defendant.
    Sitting : Merrill, C. J., Thaxter, Fellows, Williamson, Tirrell, JJ. Murray, A. R. J., did not sit.
   Thaxter, J.

This was an action of assumpsit brought in the sum of $10,000 for the failure to deliver certain potatoes. It is alleged that the plaintiff and the defendant entered into a written contract on April 7, 1951 whereby the defendant agreed to sell to the plaintiff approximately 3,500 barrels of potatoes which the plaintiff agreed to buy for the sum of $2.00 per barrel. This contract was in the following form:

'April 7 1951
M Edward Whitney Sr.
Chester, Maine
To White Mountain Distributg Co. Dr.
16 Colter St., Peabody, Mass.
Tel. Peabody 2793
Terms
I agree to sell aproximatly 3500 Barrells of Potatoes at ($2.00) two dollars per barrell graded and loaded, the bags to be furnished by the purchaser (White Mtn Dist Co)
Signed
E.W.Sr. Edward J. Whitney,Sr.
W.M.D.C. L3 Lewis Zorzy”

It will be observed that though the contract involved the sale and purchase of a large amount of potatoes nothing was said about the time and manner of payment or the time when deliveries would be made. The plaintiff viewed the potatoes in bins of the defendant and apparently satisfied himself that the defendant had enough potatoes on hand to carry out the terms of the contract. The defendant delivered four loads and took for them a note which was apparently the subject of litigation in Massachusetts. Without more ado the plaintiff brought this action against the defendant claiming that the defendant refused to complete the contract and seeking- damages for the breach.

The case was heard by a jury which brought in a verdict for the defendant and is now before us on the plaintiff’s general motion for a new trial.

The only evidence that the defendant was unable or unwilling to carry out his contract in full is the testimony of the defendant wherein he stated to Zorzy that he sold 381 barrels to a man named Underhill but there is no evidence how many potatoes the defendant had left after such sale and certainly none that he had depleted his stock of potatoes on hand so that he could not carry out his contract. The plaintiff was apparently clutching at a straw.

Whether or not the defendant committed a breach of his contract with the plaintiff was a question for the jury in whose findings we concur. No exceptions were taken to the charge of the presiding justice. In fact the charge is not even printed. We must assume that the jury were properly instructed.

There is no error apparent in the record.

Motion overruled.  