Cavanaugh v. D. W. Ranlet Co., 229 Mass. 366

229 Mass. 366 | Mass. | 1918

Braley, J.

The question for decision is whether the verdict for the defendant was ordered rightly.

It is undisputed that the plaintiffs doing business in Manchester, New Hampshire, purchased at an agreed price of the defendant doing business in Boston, Massachusetts, as a wholesale jobber of grain which it bought and sold in car lots, four carloads of “clipped white oats, to be cool and sweet,” delivery to be made at Manchester where the sale was consummated. But, as no evidence of the law of that State was introduced, the rights of the parties are to be determined at common law. Callender, McAuslan & Troup Co. v. Flint, 187 Mass. 104.

The oral contract relied on by the plaintiffs being entire, and three cars having been accepted and the price paid, the statute of frauds is not a defence. Roach v. Lane, 226 Mass. 598. Townsend v. Hargraves, 118 Mass. 325.

A sale of goods by a particular description includes a warranty that the goods shall conform to the description, and counsel for the defendant makes no contention that the words “cool and sweet” are -not words of warranty. Gould v. Stein, 149 Mass. 570. Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474, 476. Gascoigne v. Cary Brick Co. 217 Mass. 302. The defendant also never has denied that the oats in question which came in the second car were not soft and were in a general state of heat and fermentation when inspected by one Reid, a buyer from the plaintiffs of the shipment.

But, even if the draft for the price attached to the bill of lading, which Cavanaugh Brothers indorsed to Reid, was paid by him, no estoppel barring rescission arises. The jury were to decide whether the warranty had been waived by.an acceptance of damaged goods, considered in connection with the undisputed fact, that notice was given to the defendant of the breach, with a claim for reclamation. Trimount Lumber Co. v. Murdough, ante, 254, and cases cited.

What has been said rests upon the oral contract, which, notwithstanding the defendant’s denial, the jury could find resulted from the conversation by telephone between the contracting parties. The defendant however contends that the contract was in writing. The credibility of the witnesses was for the jury. It could be found that even if the exhibit, referred to in the record as a “confirmation,” with the invoices of weight and condition had been mailed by the defendant and received by the bookkeeper, yet the plaintiffs never were shown the correspondence nor made acquainted with the contents. If this exhibit is examined, the word “confirmation” is not found. It purports to be a memorandina of a sale of two cars “ straight clipped white oats,” one of which is the car in question, with a statement of the price, warranty and terms of shipment. It does not purport to confirm the oral contract. It is of itself an offer to sell which upon acceptance by the offerees would become a binding sale. The words, “This is a contract and will be considered mutually binding unless we are advised of its non-acceptance by wire. If any error in above please advise by return mail,” immediately preceding the defendant’s signature, admit of no other satisfactory construction. It could not be ruled as matter of law, that, if the “confirmation” were treated as an offer, it became a binding agreement from the failure of the plaintiffs to reply. The jury under all the circumstances were to say whether the plaintiffs’ silence amounted to an assent. Quintard v. Bacon, 99 Mass. 185. Borrowscale v. Bosworth, 99 Mass. 378. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 185 Mass. 391, 395. If the jury found the oral contract had not been established, then, if accepted by the plaintiffs, the “confirmation” would constitute the contract. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. ubi supra. But, if they found the oral contract had been proved, the further question, whether that contract had been mutually modified, rescinded or abandoned, was a question of fact under suitable instructions. Hanson & Parker, Ltd. v. Wittenberg, 205 Mass. 319, 326, and cases cited.

The defendant’s next contention goes on the assumption that the “confirmation” is the contract. If so, the rules of the Boston Chamber of Commerce were incorporated by reference, whereby if the goods are not according to the warranty, the “Seller shall be notified not later than the following business day after arrival of car at destination, and be given an opportunity to order inspection, if so desired by him.” And as the notice given was not within the designated time, the plaintiffs cannot recover. But the answer is, that on ample evidence the jury could say that the oats were in a damaged condition before the train entered Manchester. The buyers moreover were not bound to take the oats in whatever condition they might be in, and under appropriate instructions it could have been found that the word "arrival” appearing in the “confirmation,” even if read with the rules, was understood and intended by the parties to mean, that until the ear had been detached and placed on a siding where it could be reached, inspected and unloaded in the course of the carrier’s, business and notice given to the plaintiffs or to their vendee, possession had not been taken and the warranty had not been waived nor discharged. Alden v. Hart, 161 Mass. 576. Bachant v. Boston & Maine Railroad, 187 Mass. 392, 393. Garvan v. New York Central & Hudson River Railroad, 210 Mass. 275, 280. Pope v. Allis, 115 U. S. 363. A finding also would have been warranted that, if at first the carrier made a mistake in placing the car where it still remained inaccessible, upon rectification of the error, inspection immediately followed, with notice to the defendant the following day by telephone of the condition of the oats and of non-acceptance. It is manifest without further comment that upon conflicting evidence and the inferences therefrom which the jury could draw the presiding judge could not properly rule that the defence had been maintained.

We perceive no reversible error in so far as argued to the admission of evidence to which the defendant excepted, and, the plaintiffs having been entitled to go to the jury on every material aspect of the case, the verdict cannot stand. ' i

The defendant, however, if this is the result, raises no question of misjoinder. If for want of privity the plaintiff Reid could not have prevailed in an independent action, the report states, that the action is to be considered as if instituted in the name of the Cavanaughs for his sole benefit, and by agreement of parties if the case should have been submitted to the jury he is to have judgment for the amount therein stipulated with interest and costs. Bryne v. Dorey, 221 Mass. 399, 406.

So ordered.