233 Mass. 45 | Mass. | 1919
These are two actions of contracts based upon sales of goods. For convenience we treat each case separately.
First Case.
This is an action to recover for goods sold and delivered. On December 29, 1916, the defendant at the plaintiffs’ place of business in Boston made an agreement to buy of the plaintiffs “ten (10) bales of oil mill motes at 4% c. per pound, F. O. B. Boston, terms 1%, 10 net 30 days, to be shipped by the N. Y., N. H. &
The bill of lading is not printed in the record. The plaintiffs testified that the “defendant could get the goods on arrival without bill of lading.” The defendant testified that without the ['bill of lading, as matters stood, he could not get possession of the mill motes.” The court refused to- grant the defendant’s sixth request for ruling, which amongst other matters contained a statement of fact to the effect that the defendant could not obtain the possession of the motes without the bill of lading. There was no other evidence and no express finding respecting the bill of lading and its effect on delivery to the defendant in New York. Under the circumstances it must be assumed that mere failure of the plaintiffs to forward it to the defendant had no effect on his right to demand delivery of the goods in New York. See, in this connection, In Matter of Bills of Lading, 14 I. C. C. Rep. 346, and New York Central & Hudson River Railroad v. York & Whitney Co. 230 Mass. 206, 213, 217. It is the general rule that a non-negotiable contract.of shipment by a common carrier is discharged by delivery to the consignee without the surrender or production of the bill of lading. The fact that one is consignee is evidence of ownership. Brown v. Floersheim Mercantile Co. 206 Mass. 373, 375. Rosenbush v. Bernheimer, 211 Mass. 146, 149, 151.
The attempt of the plaintiffs by notice to the carrier not to deliver to the defendant was not of decisive consequence. The goods theretofore had been delivered to the carrier; it held as bailee for the defendant to whom the title had passed. The letters of the plaintiffs endeavoring to get the defendant to pay before the due date of the contract were ineffectual to restore to them a title which already had vested in the defendant. These subsequent acts of the plaintiffs had no effect upon substantial elements of the contract which were already executed. R. H. White Co. v. Jerome H. Remick & Co. 198 Mass. 41, 48. Daley v. People’s Building, Loan & Savings Association, 178 Mass. 13, 18. The finding of fact of the trial judge in favor of the plaintiffs was warranted by the evidence. No error of law is disclosed on the record.
The finding of the judge for the plaintiffs is to stand and judgment is to be entered accordingly.
So ordered.
Second Case.
This is an action to recover damages for breach of a contract by the defendant to buy of the plaintiffs a car of willowed-picker at five and three quarters cents per pound. The negotiations were oral. When the bargain was struck, an unsigned memorandum dictated by one o£ the plaintiffs was written, in which the price was stated as four and three quarters cents per pound. The judge found on conflicting evidence that this was a mistake and 'that
The correct rule of law was followed in assessing damages. It was the difference between the contract price and the fair market price at the time ánd place fixed by the contract for performance. Barrie v. Quinby, 206 Mass. 259, 268. The evidence, while slight upon this point, cannot be pronounced insufficient to warrant the finding. Houghton v. Furbush, 185 Mass. 251. Maynard v. Royal Worcester Corset Co. 200 Mass. 1, 8.
Order dismissing report affirmed.