
    
      Western District
    
    
      District Court of Franklin
    
    No. 15848
    EDWIN H. LaMONTAGNE v. FREDERICK J. ARMITAGE
   Hobson, /.

This is an action of contract brought by the defendant in case No. 15186 against the plaintiff in that case, in which the plaintiff herein seeks to recover the sum of $290.50 for work, labor and services performed and materials furnished, including items of "Salesman’s commission $76.00” and "Telephone and other expenses $18.00”.

This action was begun and entered after the second trial in case No. 15186 (Armitage v. LaMontagne) and before the completion of the Findings of Fact, Rulings of Law and entry of any decision in that case.

The defendant Armitage, in the instant case answered specially by a plea in abatement, based on the contention that case No. 15186 was for the same cause of action.

After a hearing upon this plea, it was overruled by the trial judge (the report stating that it was disallowed). The defendant Armitage claims to be aggrieved by this action of the trial judge.

In the report of the instant case it is stated that the proceedings in Case No. 15186 are described in detail in the accompanying report of that case and that the cases are reported together.

Both counsel, in their briefs, have argued this case upon the evidence reported and facts found, as stated in the report of Case No. 15x86. Therefore, we proceed to base our decision upon the same reported evidence and facts used by counsel.

Case No. 15186 (Armitage v. LaMontagne) is an action to recover the sum of $320.00 delivered to the defendant LaMontagne in connection with an offer by the plaintiff Armitage to purchase a certain Mercury automobile (the one in question in this case). Defendant’s answer included a general denial, an allegation of payment and by amendment an answer to the effect that the damage suffered by the defendant as a result of the plaintiff’s failure of performance was greater than the amount alleged by the plaintiff in his declaration and requested judgment for the amount suffered by him as a result of the breach of the contract by the plaintiff. The order form signed by the plaintiff Armitage on August 21, 1951 contained the words "This offer is not binding on dealer until accepted by dealer in writing”. The trial judge found that the defendant LaMontagne, on August 23, 1951, wrote his signature upon his own copy of the purchase order form in the place provided thereon for acceptance, and that on August 24, 1951, before receipt of any communication from the defendant LaMontagne that he had accepted in writing the offer of the plaintiff Armitage, the latter had withdrawn his offer; and therefore no contract ever came into being and found for the plaintiff Armitage. The case (No. 15186) came before us with the instant case for determination and we have made a finding, decision and order to the effect that the decision of the trial judge was correct, the same to be filed with the finding, decision and order in the instant case.

The defendant LaMontagne, in his answer in Case No. tyr86, requested judgment for the amount of damages suffered by him as a result of the breach of the contract by the plaintiff Armitage and in his brief in the instant case contends and asserts several times that he should be permitted to collect for services and damages resulting from the failure of Armitage to purchase the automobile. He recognizes that the existence of a contract for the purchase of the automobile is vital to his claim. If there was no contract by which defendant Armitage agreed to purchase the automobile, there could be no breach of any contract by him or any failure on his part to purchase an automobile which he never agreed to buy.

The decision in Case No. 15186 (Armitage v. LaMontagne) is definitely and positively to the effect that the purchase order of August 21, 1951, and the offer of the plaintiff Armitage claimed to have been made on August 23, 1951, never ripened into any agreement and that no contract was entered into by the parties for the sale and purchase of the Mercury automobile.

In our opinion this finding and decision sweeps away the basis on which the claim of the plaintiff LaMontagne in the instant case stands and is conclusively determinative of the issues therein.

We are of the opinion that the fact that the trial judge in his decision in Case No. 15x86 stated he did not consider the claim of the defendant La-Montagne for recoupment, leaving that question open for him, has no bearing upon the case, for the reason that the defendant LaMontagne could not recover on his declaration or claim in recoupment and set-off. Kuzmeskus v. Pickup Motor Co., Inc., 330 Mass. 490, 493.

Every possible legal claim of the defendant La-Montagne growing out of the transaction in question was considered and decided in Case No. 15186.

We are of the opinion that there was prejudicial error in the action of the trial judge in overruling the defendant Armitage’s plea in abatement; that under the provisions of G. L., c. 231, §108, this ruling is properly before us and that we have the power to reverse the same. The defendant Armitage’s plea in abatement should be sustained and the plaintiff’s writ and action in the instant case (No. 15848) dismissed.  