315 Mass. 561 | Mass. | 1944
This is an action of contract arising out of the nonacceptance of a carload of hides. There was a verdict for the plaintiff, and the only question presented is the correctness of the refusal of the trial judge to direct a verdict for the defendant.
The following facts were not in question: On December 14, 1939, by a written contract entered into through one Isaacson, a hide broker representing both parties, the plaintiff agreed to sell, and the defendant agreed to buy, “One carload, estimated about 8/900 allweight hides. . . . All-weights, average, estimated about 44/45 lbs., all new standard trimmed, and all fresh current receipts.” “About 8/900” meant about eight to nine hundred. “All new standard trimmed” called for hides with the ears, snouts, and tails removed. “All fresh current receipts” referred to fresh hides. The price was “ 13ji per lb. flat for the Number ones and twos, any Number threes or Bulls, one third less.” Shipment was to be “after Jan. 1st, 1940, to The Irving Tanning Co., Hartland, Maine,” and the terms were “Invoice, Order Bill of Lading attached to Sight Draft, drawn on The Irving Tanning Co., through the Warren National Bank, at Peabody, Mass.” Isaacson, according to trade practice, was to receive a commission, in this instance one per cent of the total invoice, from the seller, and also a commission, in this case seven cents per hide, from the buyer, for receiving, which included seeing that the skins were banked overnight to secure dry weight and being present when they were shaken free of salt, weighed, and loaded in the freight car. On January 16, 1940, the plaintiff shipped from Norwich, Connecticut, to Hartland, Maine, a carload consisting of seven hundred thirty-four trimmed and two hundred seventeen untrimmed hides. The bill of lading was filled out “Consigned to order of Beit Bros. Inc. Destination Hartland . . . Notify Irving Tanning Co.” and had attached to it the original invoice and a
The ad damnum of the writ was $3,000, and the one count remaining in the declaration when the case was submitted to the jury was for $5,559.40 for goods sold and delivered. The verdict was for $2,030.54. This was the sum which the judge in his charge instructed the jury should be the damages in the event they should find for the plaintiff, and was based upon the difference between the contract price and the resale price, plus freight, demurrage charges, and interest. No question was raised about this amount.
The defendant’s motion for a directed verdict was not based specifically upon the pleadings. Consequently, an exception will not be sustained to a denial of the motion if the evidence justifies a finding for the plaintiff in any amount. Weiner v. D. A. Schulte, Inc. 275 Mass. 379, 385. Earle C. Dodds Inc. v. Boston Casualty Co. 308 Mass. 124, 127. Botti v. Venice Grocery Co. 309 Mass. 450, 458.
The shipment palpably did not comply with the terms of the written contract. If matters rested there, the plaintiff could not recover. See Rommel v. Wingate, 103 Mass. 327; Agoos Kid Co. Inc. v. Blumenthal Import Corp. 282 Mass. 1, 7; Ryder & Brown Co. v. E. Lissberger Co. 300 Mass. 438, 444; G. L. (Ter. Ed.) c. 106, § 16.
On the evidence most favorable to the plaintiff, however, it could have been found that after the defendant learned the details as to the contents of the car, including the respective prices of the various kinds of trimmed and untrimmed hides, it made a new agreement to take them.
This decision does not rest upon acceptance of the goods under G. L. (Ter. Ed.) c. 106, § 37, although this seems to have been the theory of the judge’s charge, to which, however, no exceptions were taken. The shipment of the car containing hides of different quantity and some of different quality and at different prices than specified in the original contract constituted an offer of a new contract, the subject matter to be the contents of the car and the buyer’s undertaking to be payment of the total of the amounts set forth in the invoice by accepting the draft and taking up the bill of lading within the time expressly stated, otherwise within a reasonable time. Lowry Coffee Co. v. Andresen-Ryan Coffee Co. 153 Minn. 498, 500. Williston on Sales (2d ed.) § 278. 46 Am. Jur. Sales, § 49. G. L. (Ter. Ed.) c. 106, § 40. This offer could be found to have been accepted by the defendant in either of the two conversations of Isaacson and Kirstein. Hanson & Parker, Ltd. v. Wittenberg, 205 Mass. 319, 326-327. Isaacson, the broker who had shipped the car with the plaintiff’s authority, could receive a binding promise from the defendant to take the new car. “Unless otherwise agreed, authority to conduct a transaction includes authority to do acts which are incidental to it, usually accompany it, or are reasonably necessary to accomplish it.” Am. Law Inst. Restatement: Agency, § 35. Sprague v. Gillett, 9 Met. 91, 92.
It is not necessary to determine whether the offer could be found to have been accepted by Robbins in any of his conversations with Samuel J. Beit or Nathan Beit, or whether Robbins, who was in charge of office affairs during the absence of Kirstein, at such times had authority to bind the defendant in that respect. See Houghton & Dutton Co. v. Journal Engraving Co. 241 Mass. 541, 543-544; Gerrish Dredging Co. v. Bethlehem Shipbuilding Corp. Ltd.
The defendant contends that no change in the original contract of sale may be found, because the parties were throughout still in the negotiation stage. This could not on the evidence be so ruled as a matter of law.
No question of the statute of frauds has been raised or considered.
Exceptions overruled.