Price Printing House v. Jewelers' Review Publishing Co.

This is an action for damages for breach of contract. Plaintiff agreed to do the presswork, binding, and mailing of the Jewelers’ Review for a period of one year at certain prices named in the contract, and to allow defendant a credit of $700 on certain presses sold by defendant to plaintiff, payment for the work to be taken out of this $700 credit as long as it lasted, and defendant contracted to give the presswork and binding to plaintiff for the same period, at prices named. The agreement was carried out by both parties until within a few weeks of the end of the year, when defendant neglected and refused to give the work to plaintiff, and plaintiff therefore sues to recover damages for defendant’s breach. The pleadings were oral; defendant’s answer a general denial. The justice gave judgment for plaintiff, and defendant appeals. It claims that there is no evidence that it had not paid the damages, or that the credit of $700 had been exhausted. These points were not raised upon the trial. The motion to dismiss at the close of plaintiff’s case was based solely upon the ground that defendant was not bound to give plaintiff the papers or forms “at any hour during the period of time.” It is therefore not proper to raise these questions for the first time upon appeal, especially when the case was apparently tried upon the assumption that the credit had been exhausted, and that fact is clear from a con