Christopher v. Musolino

241 Mass. 202 | Mass. | 1922

De Courcy, J.

This is an action of contract for cheese sold and delivered to the defendants. The case went to the jury on the second count and the third item of the first count in the plaintiff’s declaration; and a verdict was returned in his favor in the sum of $25,150.04. At the trial numerous exceptions were taken by the defendants; but the only ones argued in this court are those to the admission of certain evidence, and to portions of the judge’s charge. We treat the others as waived.

The plaintiff, a cheese importer, had formerly worked for the defendants, who are wholesale dealers in cheese. In December, 1917, he went to South America in his individual capacity as an importer. While there he had several dealings with the defendants involving the sale and shipment to them of large quantities of cheese. This action was for an alleged balance due for the shipment made to the defendants on May 10, 1918, on the steamer Chaco. At the trial the contention of the defendants was that the plaintiff acted in the transaction as agent of one Grillo, from whom they had obtained a release. The record is confusing by reason of the numerous references to exhibits which are not printed in their numerical order. From the letters, cablegrams and letters of credit it seems clear that the defendants were dealing with the plaintiff as principal; although the bills of lading and insurance policies are consistent with the claim that Grillo, whom the defendants never met prior to January, 1919, was the seller of the goods. In view of the rulings made by the trial judge, the verdict of the jury settled this question in the plaintiff’s favor. The same is true as to the effect of the release given to the defendants by Grillo, which purported to settle the unpaid balance of $25,000 for $5,000, and was given without the knowledge of the plaintiff.

We consider the exceptions argued by the defendants in the order they appear on the brief. The first three relate to the admission in evidence of the letter from the Holland Bank of South America to J. B. Moors and Company, Boston bankers, dated May 7, 1918, the cablegram dated July 11, 1918, and three other cablegrams exchanged between these bankers. In this and other dealings between the parties, these Boston bankers issued letters of credit to the defendants, and handled the bills of lading, and other shipping documents connected therewith. The South American bank handled the drafts and other documents for the plaintiff. Numerous letters and cablegrams between these two bankers relating to the transactions between the plaintiff and the defendants were put in evidence, without objection. All were written in the usual course of business; they relate to the transactions between their respective customers, and frequently bear intrinsic evidence of previous consultation with them. The objection made to the letter of May 7, 1918, was a general one. The portions thereof to which objection is now made, are those referring to the plaintiff as owner of the goods, and to the bills as being drawn to his order, and to be paid against delivery of the shipping documents. Some of those facts are apparent from the bills themselves, which were in evidence. The letter sent by J. B. Moors and Company in reply to said letter of May 7, purports to have been written after a conference with the defendants, and it asserts their claims. At that time the defendants had refused acceptance of the bills sent to J. B. Moors and Company for collection, although the money was payable on delivery and inspection of the cheese, and that was in the possession of the defendants. Mr. Francis J. Moors, one of the firm of bankers, testified that he talked "with the defendant Berger about these unpaid drafts. To the question “And if a letter came from the South American Bank that involved Mr. Berger, or his position, you communicated those facts to Mr. Berger for protection, didn’t you?” he answered “We certainly did.” The jury could infer that this letter of May 7 was shown to the defendants, notwithstanding Berger’s denial. And even if it were not, in the light of all the evidence we are of opinion that it did not affect the substantial rights of the defendants.

The cablegram of July 7, 1918, from the South American Bank to J. B. Moors and Company notified the latter that they would be held responsible for the delivery of the merchandise to the defendants, by reason of giving them the bill of lading without having the sight drafts therefor accepted. As to this it is enough to say that Mr. Moors testified that when he received the cablegram he took the matter up with the defendants, and they refused to return the goods unless they were paid ten per cent profit, in addition to being reimbursed for payments made and expenses incurred. The cablegrams between the bankers dated July 16, 18 and 20, 1918, were admissible for like reasons. That of July 16 was admitted during the examination of Mr. Moors; and he testified that before sending it he talked with the defendant Berger, and showed him “parts” of the cablegram received from the South American bank, dated July 11, which dealt with the same subject of the return of the cheese.

The defendants put in evidence a release from Grillo to them, dated January 20,1919. At an earlier date the plaintiff had accompanied Grillo to the defendants’ office. During the cross-examination of the plaintiff it was attempted to be shown that he had brought Grillo to their office for the purpose of settling the outstanding balance of about $25,000; and hence was estopped from claiming that he was the principal and not an agent in the transaction. In view of this cross-examination, and the testimony of the defendant Berger, we find no reversible error in admitting the" testimony of the plaintiff as to his reimbursement to Grillo of the $2,000, which Grillo had allowed to the defendants; the receipt therefor; and the plaintiff’s indebtedness to Grillo for this shipment.

The second fifty per cent of the purchase price was payable on the inspection of the merchandise. The defendants obtained from J. B. Moors and Company the bills of lading without payment; and later refused to accept the drafts or to surrender the goods. The testimony of the witness Thayer that it is not usual nor proper to so deliver bills of lading was competent. The testimony of the witness Cirace, who had inspected the cheese in Boston at the defendants’ request, that he offered sixty-three cents for this cheese, and that was the market value, was competent in view of the testimony of the defendants as to its condition and value. As to the portion of the charge excepted to, we cannot say that harmful error is shown when the charge as a whole is considered.

Exceptions overruled.