252 Mass. 135 | Mass. | 1925
This is an action of contract. The declaration, in two counts, seeks the repayment of the purchase price of five hundred bales of wool, sold the plaintiffs by the defendant, and of certain charges incurred and paid by the plaintiffs in connection therewith. At the close of the evidence the parties entered into the stipulation which follows: “It is hereby stipulated that the court having ordered a verdict for defendants on plaintiff’s claim shall report the case on all the evidence for the consideration of the full court. If the ruling of the court that the plaintiff is not entitled to go to the jury be affirmed, judgment shall be entered for defendant on the plaintiff’s claim. And judgment shall be entered for the defendant-plaintiff in set-off for the amount claimed in its set-off with interest as if a verdict had been rendered as of November 1, 1923. If the plaintiff was entitled on the evidence to have the plaintiff’s case submitted to the jury, judgment shall be entered for the plaintiff for the amount claimed in the plaintiff’s declaration with interest as if a verdict had been rendered for plaintiff as of November 1, 1923, and judgment against defendant on its claim in set-off.” The presiding judge then directed a verdict for the defendant and reported the case to this court, in accordance with the terms of the stipulation.
The evidence material to the narrow issue set up in the declaration, in substance, is that on April 29, 1920, the plaintiffs, acting through a member of the firm, Harry P. Bradford, bought of William H. Grundy as the representative of William H. Grundy Company, Inc., and Grundy & Co. Inc., five hundred bales of Chubut wool “60/64s; estimated shrinkage 69%. Equal in grade and staple to previous purchase. 51J^c cif Boston.” In accordance with the sale note, the plaintiffs on the same day caused a letter of credit for $255,000 to be issued to the representative of the defend
The wool arrived in Boston from Buenos Aires by steamer on August 22, 1920. It was put into the warehouse of Brown and Adams, by the direction of the plaintiffs, who advanced the freight charges to the steamship company on behalf of the defendant, and on their own behalf paid the cost of storage and insurance. The wool was invoiced in nine lots, and sample bales of each and every lot were brought to the warehouse of the plaintiffs for examination, twenty-one bales all told out of the five hundred. The examination, which was conducted by Bradford, warranted the claim that the wool was not “equal in grade and staple to previous purchase.” A Boston representative of the defendant (Bennett), at the request of the plaintiffs’ agent (Bradford), examined the wool and agreed with Bradford that “it was not equal to the first wool” for the reason that there were fifteen to twenty per cent “offsorts” in it. Bradford at this examination told Bennett “that . . . [he] could not accept that wool . . . [he] had a perfect right to reject that wool but . . . [he] didn’t want to if . . . [he] could help it. . . . [His] reason for not wanting to reject the wool was,not because the market had fallen, it was because . . . [he] thought that it might possibly be said that . . . [he] was trying to squeal on . . . [his] contract. What . . . [he] said to him in substance was that . . . [he] would like to reject the wool but didn’t want to because it wouldn’t look well if . . . [he] did.”
Bennett, soon after, appeared at the office of the plaintiffs with a proposition from Grundy to the effect that the wool be sent to the mill of the defendant at Bristol, where the defendant would sort it carefully and reimburse the plaintiffs at the rate of fifty-one and one half cents a pound for the “off-sorts” taken out; the defendant would then comb the wool and put it into “top” for the plaintiffs, the plaintiffs to pay the expense of combing and putting it into “top.” After a
On September 20,1920, Grundy sent Bradford a memorandum of sorting tests of the one hundred bales Chubut wool “sent us for combing.” This test showed that eleven per cent of “offsorts” had been taken out. Bradford, on receipt of the memorandum, called Grundy on the telephone and said to him, in substance, that he did not think he was taking out enough “offsorts,” that he was not satisfied and thought more should be taken out. Grundy answered that he had tried to do a very careful job of it and thought he had; that he thought he had done all that could be expected of him; and he said “You ship the balance of the wool down and I will try and be even more careful in making a good sort of that wool.” Bradford said he would send down the four hundred bales on Grundy’s assurance that he would be more careful in the future and sort out more of the inferior wool. He was emphatic in the statement that he wanted all the “offsorts” taken out and was not satisfied with the eleven per cent.
On September 23, 1920, the plaintiffs wrote the defendants
About September 27,1920, Bradford received from Grundy samples of top and nails taken from the one hundred bale lot and wrote Grundy in reference to them as follows: “In examining the Top we find it to be somewhat1 nibby.’ Cannot this defect be avoided because, as you' well know, it is hard to sell ‘Nibby’ Top .... The Noils were very short and are somewhat defective, more so than other lots which we have recently had combed. We really think the wool should be sorted a little closer for this defect. 400 bales more of this wool is being shipped you. and we certainly look to you to make the Top a little clearer than the sample first submitted.” On September 28,1920, the plaintiffs wrote the • defendant enclosing a "memorandum for 400 bales and 1 bag Chubut wool which you are to comb for our account.” The letter referred to that of September 27, repeated in substance what was said therein concerning the "Nibby” Top,
At the trial Bradford testified in reference to his letter of October 5: “When I saw the top come through poor and that he wasn’t taking out enough nail, I naturally would shift my ground. They tried to follow my directions, — I hope they did.” September 27, 1920, the plaintiffs wrote for a five pound sample of nails from the one hundred bales “C. O. 64.” In relation to the sample sent the plaintiffs in response to this order, Bradford testified: “This five pound sample ... we probably sent it to a customer. We were showing the nails that Mr. Grundy was combing out of this wool to customers and offering it for sale, treating it as our own wool that we had to sell. It was offered to a number of people and samples of the top and nail were submitted to customers as the top and nail that Adams and Leland had for sale.” On September 30, 1920, the plaintiffs sent the defendant “1,000 sacks in which to put the top made from the 400 bales.” On October 1,1920, the plaintiffs sent the defendant to “blend through the wool you are combing for us” six bags of broken tops from other wool, not from wool bought from Grundy, and they were combed into the wool from the four hundred bales. Of this incident Bradford testified: “I never denied that they were
Before November 1, 1920, the plaintiffs ordered the defendant to comb in oil twenty-five thousand pounds top which would have to come in a “substantial degree” from the four hundred bales, No. “69.” A sample of this combing was delivered to the plaintiffs about November 1. At different times during September, October and November the defendant, at the request of the plaintiffs, sent samples taken from the one hundred bale lot and from the four hundred bale lot designated as lots “64,” “69” and “70”; some of these were delivered and some were shown to customers for the purpose of selling the wool. On November 16, 1920, the defendant sent, and the plaintiffs received on November 17, a report on sorting and combing the entire five hundred bales, with a credit memorandum of “off-sorts” and a charge for combing and sorting. Bradford admitted the plaintiffs agreed to pay for the combing, and the sorting charge is covered by the stipulation of the parties hereinbefore set out. The report showed eleven per cent of “offsorts” for the one hundred bales and six and six tenths per cent for the four hundred bales — an average of seven and a half per cent. The plaintiffs then wired for samples of lots “69” and “70” and wrote for further samples on November 18 and 23, 1920.
On November 26,1920, the plaintiffs wrote the defendant: “We could not accept the wool as originally shipped. We cannot accept the Top as you have made it.” As regards the letter of November 26 Bradford testified: “I repudiated the whole contract without looking with any care at either
In this transaction the draft, which the plaintiffs were required to accept at the Second National Bank of Boston for account of the defendant’s representative, was accompanied by a proper bill of lading and an invoice, and the defendant, on June 4, sent the plaintiffs a certificate of marine insurance, insuring the plaintiffs from “Buenos Aires to U. S. Atlantic port.” It follows that the title to the wool sold the plaintiffs under their “cif” contract with the defendant passed to the plaintiffs when it was loaded on the steamer Hostillius, which left Buenos Aires on May 29,1920, for Boston. Smith Co. Ltd. v. Marano, 267 Penn. St. 107; 10 A. L. R. 697, and cases collected at pages 701, 705. Harper v. Hochstim, 278 Fed. Rep. 102; 20 A. L. R. 1232, and note. National Wholesale Grocery Co. Inc. v. Mann, 251 Mass. 238.
The sale note, under the heading “Description,” in substance provided that the wool sold is to be “Chubut 60/64s; estimated shrinkage, 69% equal in grade and staple to previous purchase.” The sales act, G. L. c. 106, §§ 16, 18, provides : ‘ ‘ Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the description . . . .” “In the case of a contract to sell or a sale by sample — (a) There is an implied warranty that the bulk shall correspond with the sample in quality, (b) There is an implied warranty that the buyer
The plaintiffs for reasons which concerned their business reputation did not avail themselves of their right to rescind, but entered into an arrangement whereby the defendant undertook to sort the wool carefully and agreed to reimburse the plaintiffs at the price they paid for the wool for the “off-sorts” it took out, and then comb the wool for the plaintiffs at the usual charge for combing. The execution of this agreement involved necessarily a material change in the wool from a raw state into qualities which are described in the record as tops and nails.
The contention of the plaintiffs that the wool belonged to the defendant and that they were in the position of an unwilling bailee after they notified a representative of the defendant that they “could not accept said wool” is unsound. The title, which vested in the plaintiffs on the delivery of the
The facts disclosed by the record would not warrant a finding that the plaintiffs were given by the defendant a right to rescind at some future time because the wool differed in kind from the wool of the previous sale, or because it was not of the quality of the previous sale, if the defendant under the agreement to resort did not remove sufficient “offsorts” to make the wool conform to the quality and description required by the sale note. The agreement was a new contract whereby, for their common advantage, the plaintiffs gave up their right to rescind, and the defendant undertook to resort the wool and to pay the plaintiffs for the “offsorts” removed the price which the plaintiffs had paid for “60/64s” wool when the wool in bulk was delivered on the steamer at Buenos Aires. The plaintiffs not having elected to rescind the sale when it was ascertained by them that the wool differed in kind or in quality from the wool described in the sale note, and not having by contract with the defendant a right to rescind at the happening of a future event, cannot tinder either count of their declaration recover by way of repayment “the purchase price of said wool and the charges incurred therewith.”
The ruling that the plaintiffs were not entitled to go to the jury was right. It follows in accordance with the terms of the stipulation that judgment is to be entered “for defendant on the plaintiff’s claim” and “for the defendant-plaintiff in set-off for the amount claimed in its set-off with interest as if a verdict had been rendered as of November 1,1923.”
So ordered.