267 Mass. 98 | Mass. | 1929
The plaintiff seeks to recover in different counts the price of coal sold and delivered, freight and demurrage charges caused by the defendants’ failure to discharge the coal from the cars on arrival, damages for breach of the defendants’ contract to buy the coal and the reasonable value of services performed, and reimbursement for expenses and liability incurred for freight and demurrage charges in endeavoring to perform the contract. The answer is a general denial; it also sets up the statute of frauds as a defence.
The defendants are copartners doing business under the name Mt. Bowdoin Fuel Company. In January, 1926, the defendant Levine visited Pennsylvania and met one Brennan, the secretary of the Somerset County Coal Operators’ Association of which the plaintiff is a member. Thereafter a telegram signed “ J. S. Brennan, Secretary Somerset County Coal Oprs. Assn., Somerset, Penna.” was sent Levine stating “Can furnish quick eight cars lumpy mine run smokeless two dollars net ton Can you use.” Upon receipt of the telegram Levine, in a telephone conversation, asked Brennan to ship the coal, and the plaintiff, in response to a telephone request from Brennan, sent the coal in nine cars to the defendants. The defendants understood that the coal to be shipped belonged to some operator. On the twenty-third day of February Brennan wrote the defendants in confirmation of the telephone conversation stating that nine cars, designated by number, had been shipped to the Mt. Bowdoin Fuel Company at its siding, Dorchester, and describing the kind of coal, stating price per net ton, and when cars would leave the mine. He signed his name “ J. S. Brennan Secretary.” The letter was written on the letterhead of the Somerset County Coal Operators’ Association and a copy of it was sent to the plaintiff. Brennan testified that the defendants were to send a letter of the same purport to the plaintiff but that this was never done. There was evidence that the nine cars had about
By consent of the parties, the question, "Was the coal shipped of the quality called for by the contract? ” was submitted to the jury; they answered in the affirmative. Thereupon the judge, subject to the plaintiff’s exception, allowed the defendants’ motion for a directed verdict upon the ground that the contract was within the statute of frauds, with a stipulation of the parties that if this order was wrong and the case should have been submitted to the jury, judgment is to be entered for the plaintiff for the total of such of the foregoing items as the Supreme Judicial Court determines to be proper elements of damages, with interest.
The carloads of coal had been selected by the plaintiff and had been forwarded by a carrier to the defendants. They
By their telegrams the defendants refused to accept the coal after inspection. If they had done no more their defence of the statute of frauds might be maintained as matter of law. But Levine testified that he tried to dispose of the coal to the public; and Brennan testified that Levine told him that he had tried to dispose of it and had received an offer of fifty cents a ton in Boston, but that the price of the coal was $2 a ton and the freight $4.20. G. L. c. 106, § 6 (3) provides that “There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.” In Garfield v. Paris, 96 U. S. 557, 563, the court said, “. . . it is well settled that any acts of the parties indicative of ownership by the vendee may be given in evidence to show the receipt and acceptance of the goods to take the case out of the Statute of Frauds.” In Kemensky v. Chapin, 193 Mass. 500, 506, the court stated the ordinary test for determining the question of acceptance to be “whether the conduct of the buyer in dealing with the goods is such as fairly to indicate an assertion of ownership.” A resale, mortgage or pledge of the goods by the buyer will be or may be found to be such an exercise of ownership as to be a constructive receipt and acceptance meeting the requirements of the statute of frauds. 1 Williston, Sales, (2d ed.) § 77. Harrison v. Scott, 203 N. Y. 369, 373.
In Beedy v. Brayman Wooden Ware Co. 108 Maine, 200, 205, the court said “In reason we fail to distinguish between a sale and an offer to sell. There is no difference in so far as the act of the alleged purchaser is concerned. He does
Under these circumstances the question, whether the defendants had exercised acts of dominion that were consistent only with ownership and had therefore accepted the coal notwithstanding their statements in the telegraph dispatches, should have been left to the jury to decide.
It follows from the terms of the stipulation that the defendants are liable for the contract price of the coal. Leonard v. Carleton & Hovey Co. 230 Mass. 262. See John B. Frey Co. Inc. v. S. Silk, Inc. 245 Mass. 534, 541. G. L. c. 106, § 35 (1); § 52 (1). The plaintiff entered into the contract for transportation with the carrier and would be liable to it for freight in the first instance. Finn v. Western Railroad, 112 Mass. 524, 533. American Railway Express Co. v. Mohawk Dairy Co. 250 Mass. 1, 8. As between the plaintiff and the defendants the latter were to pay the freight. Wooster v. Tarr, 8 Allen, 270. Blanchard v. Page, 8 Gray, 281. The consignor became liable to the railroad corporation for demurrage after being notified that the consignee had refused to take the coal. The defendants were at fault in refusing to discharge the coal from the cars, and thereby caused the demurrage charges for which the railroad corporation, after notice, had the right to look to the plaintiff. Baltimore &
In accordance with the terms of the report, judgment is to be entered for the plaintiff for $4,890.91, being the price of the coal plus the net amount due for freight and demurrage, to which sum interest from the date of the writ is to be added.
So ordered.
