Ayer v. R. W. Bell Manufacturing Co.

147 Mass. 46 | Mass. | 1888

Holmes, J.

1. The plaintiffs’ written order for soap was drawn to bind them only, was signed only by them, and does not contemplate the defendant’s signing it. There was no necessity that it should set forth the whole consideration, especially collateral undertakings, on the part of the defendant. It purports to state what the plaintiffs agree to buy, and the price which they agree to pay. The stipulation for a reduction on goods on hand, if the defendant should reduce the price, relates to the price. The provision in favor of the seller, “that there shall be no further claim made or allowed on this sale of French Villa Soap, and that the same shall be promptly paid for,” etc., refers to claims for a rebate based upon some complaint as to the thing sold. Evidence of a collateral oral undertaking by the defendant to advertise was admissible. See Hazard v. Loring, 10 Cush. 267. Erskine v. Adeane, L. R. 8 Ch. 756. Morgan v. Griffith, L. R. 6 Ex. 70. Lindley v. Lacey, 17 C. B. (N. S.) 578. Eighmie v. Taylor, 98 N. Y. 288.

2. There was some evidence that the plaintiffs said that they would not buy the quantity purchased unless they were sure that the defendant would advertise the soap liberally in Boston and local papers, and that the defendant’s agent, Breyfogle, promised to keep up advertisements of the soap until October 30, on which day the various gifts promised in the advertisements were to be distributed. The defendant denies its agent’s authority to make the promise; but we are of opinion that there was evidence to go to the jury. The agent was sent by the defendant to the plaintiffs in answer to a letter inquiring “ what the terms and inducements are to jobbers.” It appears on the face of the printed form produced by Breyfogle, upon which the plaintiffs wrote their order, that the offer of some sort of special inducement was contemplated. It was important to the success of the plaintiffs in selling the soap, that the advertisements should be kept up until the date for distributing the gifts, which were promised to the consumers of the largest amounts. It is usual for the manufacturers to do the advertising, and the defendant was doing it at the time of the agreement. Therefore, an undertaking by the defendant to continue what it was doing, and what parties in its situation usually do, was, or might have been found to be, a natural inducement to a wholesale purchaser, and one which the plaintiffs reasonably might assume to be within Breyfogle’s authority to offer, when he was sent to answer their inquiries.

There was also evidence that, later in the same month, the defendant, in a letter to another firm with whom Breyfogle had made a contract, wrote, “ The advertising, etc., as he agreed, will also be properly attended to,” and afterwards wrote that a man had been sent “ to do the advertising in accordance with the agreement made by Mr. Breyfogle.” Breyfogle in his testimony impliedly admitted that he made this agreement without previous authority, but stated that he made it subject to the defendant’s approval. The jury may have believed the admission, and at the same time may have disbelieved the qualifying statement on the strength of the letters, which, on their face, seem to import, not ratification, but the recognition of an agreement already made and binding. Case v. Baldwin, 136 Mass. 90, 91. If the jury took this view, the letters were evidence that contracts to advertise were within the scope of Breyfogle’s general authority. See Lovell v. Williams, 125 Mass. 439. Reed v. Ashburnham Railroad, 120 Mass. 43. They were instructed that, if the agreement was conditional, the evidence was of no importance on this question.

It was suggested that the judge ruled that the defendant was bound by Breyfogle’s acts as matter of law; but looking at the whole charge rather than at one isolated expression, we think that the jury must have understood that the question was left to them.

3. Evidence that another company to- which the defendant sold out its business did advertise after the day for distributing the promised gifts to purchasers had gone by, when the time covered by the defendant’s alleged contract had expired, and the breach was complete, was properly excluded.

The plaintiff’s exceptions are waived.

Exceptions overruled.