Whelton v. Tompson
Massachusetts Supreme Judicial Court
Contract. The declaration alleged that the parties made an oral contract in which the defendants agreed to do certain work “ to the satisfaction of the plaintiffs,” and that the defendants wholly failed to perform the same. Answer, a general denial.
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Contract. The declaration alleged that the parties made an oral contract in which the defendants agreed to do certain work “ to the satisfaction of the plaintiffs,” and that the defendants wholly failed to perform the same. Answer, a general denial. Trial in the Superior Court, before Brigham, C. J., who allowed the following bill of exceptions: “ The defendants requested the court to instruct the jury that the plaintiffs, having set out a special contract, one element of which was that the work was to be done to the satisfaction of the plaintiffs, it was necessary that such averment should…
1Opinion of the Court
By the Court.
The ruling requested should have been given. As stated in the bill of exceptions, it did not relate to the proof of a breach, but to the proof of the terms of the contract declared on. If one of the terms alleged was not proved, there was a variance, and the plaintiffs could not recover undei iheir declaration. Exceptions sustained.
2Cited by3 opinions
- Fried v. SingerMassachusetts Supreme Judicial Court · 1922
- Capitol Beef & Provision Co. v. Somerville Dressed Meat Co.Massachusetts Appeals Court · 1973
- United Neon Sign Corp. v. ZahosMassachusetts Supreme Judicial Court · 1934