
    SUPERIOR COURT
    George Spalt & Sons, Inc. vs. Luigi Maiello
    No.54346
    RESCRIPT
    January 20, 1924
   BLODGETT, J.

Heard upon motion for new trial filed by defendant after verdict of a jury for plaintiff for $1818.

Action arose from ' an alleged breach of contract by defendant for purchase of fixtures for a drug store owned by defendant..

The damages alleged arose from the refusal of defendant to accept certain of said fixtures made specially by plaintiff for defendant’s place of business.

Plaintiff .offered testimony of certain articles made in pursuance of said contract, and of the cost of manufacture, amounting to some eighteen hundred dollars, and there were testimony that upon refusal of defendant to accept same, such articles were necessarily scrapped as of no value.

There were several meetings between the parties and on January 24, 1922, defendant signed an order for drug store fixtures amounting to $9209 as per drawings and specifications to be submitted. Samuel P. Phillips, a salesman for plaintiff, testified the specifications were submitted at the time the contract was signed.

The contract is for certain specified fixtures to be manufactured by plaintiff under certain specifications, for future delivery, and to be specially fitted for the business place of defendant. There was further testimony as to the necessity for early delivery of same.

The contract is one for work and labor to be performed on certain articles not existing, and not for the sale of standard fixed articles "already in stock. In accordance with the order plaintiff introduced testimony that work was begun on the fixtures and material furnished, and that defendant refused to accept same, and the measure of damages claimed was the cost of labor and materials furnished up t'o the time of the attempted cancellation of the contract.

For Plaintiffs: Frank H. Hammill, McGovern & Slattery.

For Defendant: A. V. Pettine.

The defendant admits the signing of the order, and that certain pencil marks in plaintiff’s “Ex. E.,” making certain changes, are in his handwriting, and that the order' was signed by him under representation by plaintiff that it was a mere matter of form and that he, defendant, was paying no money, and that as no money was paid it was no contract. Defendant further testified that he never accepted specifications and never ordered plaintiff to start' work upon the order, and that he never received a letter from plaintiff accepting tbs order.

February 10, 1922, defendant wrote plaintiff a letter cancelling said order, “as far as you have gone.” At the close of testimony the court' directed a verdict for defendant upon the first count of the declaration and refused to direct a verdict for defendant upon the second count.

Upon the evidence submitted the jury found for the plaintiff in the sum of $1818 for work and labor and materials furnished prior to the cancellation of the contract, and there was evidence which might justify such verdict if believed by the jury under all the circumstances surrounding the case.

Motion denied.  