250 Mass. 159 | Mass. | 1924
The first action is to recover damages for'the failure of the Aker-Alien Lumber Company, Inc. to accept and pay for lumber which the plaintiff alleges it agreed to buy. The second action is to recover damages from the Blanchard Lumber Company for nonperformance of alleged contracts to deliver lumber of the kind and quality ordered. The cases, which were tried together, having been referred to an auditor, upon the coming in of his report a trial was had to a jury, which returned a verdict for the plaintiff in the second case, and a verdict for the defendant in the first case, and the cases are here on exceptions of the Blanchard Company. We shall refer to the Blanchard Company as the seller and to the Aker-Allen Company as the buyer.
The auditor having found generally in favor of the seller for $9,673.69, the report was read to the jury, and the plaintiff in the first case rested, and, the buyer having introduced evidence in defence of the first action and in support of the second action, the seller at the close of all the evidence moved for a directed verdict “ in accordance with the terms of the auditor’s report.” The motion was denied rightly. The law of the case was for the court, and the jury were to pass
The principal contention of the seller is that there was error in the admission of evidence because it varied the terms of the contract in writing between the parties, and that, if it had been excluded, the auditor’s report would have been conclusive. The seller’s salesman, one Amidon, interviewed the buyer’s president at its place of business concerning the sale of lumber, and was informed that the company desired to purchase “ out spruce boards.” The jury would have been warranted in finding on all the evidence, that Amidon was acquainted with the nature of the buyer’s business, which substantially consisted in making boxes for paper manufacturers to be used in the shipment of high grade paper, and that the buyer intended to use the boards in the manufacture of the boxes, which must be dry or the paper would deteriorate. The buyer thereupon gave five orders prepared by Amidon to which he signed the seller’s name, for “ 1 million feet . . . out spruce boards,” dated respectively April 9,12,19, 21 and May 1,1920. The orders, with the exception of the order of April 21, which contained the words “ Ship dry,” made no reference to the condition of the lumber. During the period covered and before any lumber was shipped, there was correspondence between the parties relating to the orders and their acceptance. The seller wrote the buyer April 13, “ We have your several orders which Mr. Amidon has sent in. Of the 250,000' of boards, we can probably take 150,000, perhaps more. Will let you know later. There is very slight possibility of our being able to put through the 1 x 3 #3 but we will try.” This refers only to the order of April 19, calling for “ 50 M 1 x 3 up out . boards.” The buyer replied April 23, “ That our files may be complete we wish you would advise us as soon as possible, if we are to understand that the following stock has been accepted by you on sales-slips left with us by your Mr. Amidon, — #395 April 9th, 6 cars 2x5 and wider Out Spruce resowed and PIS 13/16" @ $45.25 #394 April 9th, 50 M 1x3 and wider Out Spruce PIS 45 M Out Spruce Boards
The jury under appropriate instructions could find that the contracts consisted of the statements to Amidon, and the orders. Leavitt v. Fiberloid Co. 196 Mass. 440. Davis v. Cress, 214 Mass. 379, 382, and cases cited. There also was evidence that a representative of the seller at its place of business told the president of the buyer, who complained that the boards were “ not fit 'for boxes to crate paper ” because the lumber was “ wet and green ”; that the boards “were not up to what the Aker-Allen Lumber Company had asked for, what the Blanchard Lumber Company had intended to ship, and for the Aker-Allen Company to handle the boards and do the best they could with them and that Blanchard Lumber Company would reimburse them.” There was further complaint that the boards as delivered were “ wet and green,” to which the response was, that the seller would reimburse the buyer for “ any loss which
The Blanchard Company also excepted “ to such portions of the charge as stated that the contract was evidenced by the conversations of the parties.” It is argued that the paroi evidence rule is substantive law, and the question can be raised even if there was no evidence that Amidon was without authority to bind the plaintiff. The judge gave all the plaintiff’s requests, and it does not appear that his attention was directed to this defence. The Blanchard Company, as previously said, rested its case in each action solely on the contention, that the orders alone constituted the contract, which could not be varied by extrinsic evidence. It offered no evidence of any limitation of Amidon’s agency, and his ostensible powers when dealing with the buyer were on the record his real powers. Danforth v. Chandler, 237 Mass. 518. Howard v. Haywood, 10 Met. 408, 419, 420. Sayles v. Quinn, 196 Mass. 492. Howard v. Fall River Iron Works Co. 203 Mass. 273, 277. The judge moreover gave further instructions to which no exceptions were taken, as follows,". . . it was my intention to tell you, and I now do so, that the contract entered into between the parties was made up of a memorandum signed by Mr. Amidon, agent of the defendant Blanchard Company, and conversations between
We have examined all the exceptions, in so far as not waived, and, finding no error, the entry must be,
Exceptions overruled.
