Bursaw v. Pederson, 284 Mass. 471

Bursaw v. Pederson

284 Mass. 471 | Mass. | 1933

Pierce, J.

This is an action to recover upon an account annexed for the sale of gasoline, oil and motor accessories. The only items in dispute were those relating to gasoline, the defendant contending that the plaintiff did not deliver the amount of gasoline claimed. The case was referred to an auditor who filed a report in favor of the plaintiff. Each party filed a motion for judgment. The plaintiff’s motion was allowed and the defendant duly excepted.

The auditor found the following facts: The plaintiff, in support of the items in the declaration, offered his ledger account showing charges against and credits to the defendant named in the account, together with the plaintiff’s daily sales slips made out in duplicate by the drivers who made deliveries to the defendant. One copy of these slips *477had in each instance been left with the defendant and the other was turned in by the driver to the plaintiff’s bookkeeper and entries in the ledger account were posted directly from such slips to the ledger. The sales slips in possession of the plaintiff were produced and offered as an exhibit. The auditor states that he made the preliminary finding required by G. L. (Ter. Ed.) c. 233, § 78, and admitted both slips and ledger account as exhibits. He further found that the defendant began buying his gasoline, oil and other supplies from the plaintiff sometime in the early twenties and continued so to do down to and including the month of September, 1928. (The plaintiff’s writ is dated October 10, 1928.) The deliveries of gasoline by the plaintiff to the defendant were made by the plaintiff’s drivers from a tank wagon into a tank owned by the defendant and located under ground on the defendant’s premises. The method of ascertaining the number of gallons of gasoline delivered into the tank of the defendant was for the driver of the plaintiff’s truck to insert a stick into the tank for the purpose of ascertaining the amount of gasoline in the tank prior to any new delivery; by means of certain marks on the stick the amount of gasoline could be estimated or computed by the driver and the tank would then be filled to its full capacity. The amount of gasoline in the tank before any new gasoline had been put in was deducted from the number five hundred sixty-five (the capacity in gallons of the tank) and the balance was charged for by the plaintiff as the amount of gasoline delivered. The stick was not a sealed measure.

The report further discloses that shortly before April 4) 1928, the defendant became suspicious that he was not receiving the full amount of gasoline for which he was being charged; he, therefore, at some time after the action was brought caused an experiment to be conducted by a disinterested person, which is described as follows: A new stick was procured of substantially the same size and shape as that which had been used by the plaintiff. The tank was emptied in so far as the pump attached thereto would empty it, and the new stick was then inserted in the tank; this *478showed that there was an undetermined amount of gasoline in the tank. The tank was then filled with gasoline by means of five-gallon cans which were sealed measures. After two cans of gasoline had been put into the tank and the gasoline allowed to settle, the stick or rod was inserted in the tank and a mark made on the rod showing the level to which the gasoline in the tank had risen. This process was repeated every time that two cans of gasoline were put into the tank until the tank was full. Whenever the number of gallons put in had amounted to one hundred, a mark to indicate that fact was put on the rod, and when the tank was full a mark to indicate the level of the gasoline at that time was made. The two sticks or rods were introduced at the hearing as exhibits and the marks on the rods did not correspond. After the rehearing the auditor stated that the “contention of the defendant” (which the auditor declined to adopt) was “that because the marks on the two sticks or rods did not agree, and because of the provisions of G. L. c. 98, he was entitled to a finding to the effect that the plaintiff’s prima facie case had been met and overcome and that the defendant was, therefore, not chargeable for any gasoline for which charges were made in the plaintiff’s account annexed.” The auditor further found that the gasoline sold and delivered by the plaintiff to the defendant was not measured, that it was computed, and that there was no evidence as to whether the plaintiff’s rod was correctly marked “except in so far as the defendant requests me to find that because the marks on the two rods did not agree, therefore, the marks on the plaintiff’s rod were^necessarily inaccurate and incorrect.” At the conclusion of the supplementary report the auditor said: “Under these circumstances, I feel justified in drawing the inference, which I do, that the sales of gasoline by the plaintiff to the defendant, as set forth in his account annexed, were made in good faith and that the defendant as purchaser was not injured thereby.” G. L. (Ter. Ed.) c. 98, §§ 26, 28.

The entire dispute arises from the method employed in measuring the gasoline. It is to be noted that the plaintiff did not declare under G, L. (Ter. Ed.) c, 98, § 28, and *479so was not obliged to show his own guilt in proving his case, O’Brien v. Shea, 208 Mass. 528, 535; and there is nothing in the bill of exceptions to indicate that the defendant pleaded illegality in the contract sued on, Cardoze v. Swift, 113 Mass. 250, 252. The plaintiff declared upon quantum meruit, and the auditor found that he sold and delivered to the defendant the gasoline, oil and motor accessories set forth in three hundred twenty-four items in an account annexed, which the parties agreed were of the value of $2,617.61. It is plain in the circumstances found by the auditor that the plaintiff and defendant understood and contracted on the basis that the quantity of gasoline sold and delivered was to be determined by computation and not by any measuring device recognized by statute. Sales and delivery of goods, wares and merchandise may be made without measuring and weighing devices described by law, if such sales are made in good faith and the purchaser is not injured thereby. G. L. (Ter. Ed.) c. 98, § 28. There is nothing in the evidence contained in the bill of exceptions to show bad faith by the plaintiff or injury to the defendant.

Exceptions overruled.