F. W. Stock & Sons v. Snell

240 Mass. 427 | Mass. | 1922

DeCourcy, J.

The plaintiff is engaged in the business of milling flour in Michigan, and brought this action against the defendant, a wholesale flour dealer in Fall River, to recover damages for breach of a contract for the sale and purchase of certain flour. The contract was evidenced by a memorandum dated October 18, 1910. It called for one thousand and twenty-five barrels of Mikota Flour at $5.25 per barrel, to be shipped in instalments and paid for on arrival of the goods at Fall River with bill of lading attached. Pursuant to the terms of the contract the plaintiff forwarded to the defendant in October and November two carloads of two hundred and five barrels each, and the defendant accepted and paid for them. In December a third carload was .shipped, containing two hundred and five barrels of Mikota flour and twenty-five barrels of Rosebud (pastry) flour; but the defendant refused to accept it. After much correspondence, the plaintiff sold the flour elsewhere at the market price, which was lower than the contract price. This action for the loss and for demurrage and transportation charges has been twice before this court; see 213 Mass. 449 ; 226 Mass. 499. The third trial was upon an amended declaration and answer, and the jury returned a verdict in favor of the plaintiff. The defendant’s exceptions all relate to the refusal of the trial judge to give certain rulings as requested.

The second, fifth, seventh and thirty-fourth requests are in support of the defendant’s contention that he was entitled to reject the third carload because it contained the twenty-five barrels of Rosebud flour, not called for by said contract. The provision of the sales act, St. 1908, c. 237, § 44, cl. 3 (see now G. L. c. 106, § 33, cl. 3), is: “Where the seller delivers to the buyer'the goods which he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and. reject the rest, or he may reject the whole.” To the same effect see Rommel v. Wingate, 103 Mass. 327; Rock Glen Salt Co. v. Segal, 229 Mass. 115. The trial judge instructed the jury in accordance therewith. And he gave the defendant’s sixth request which was: “If the plaintiff included in the third car twenty-five barrels of Rosebud flour without orders from the defendant, the defendant was under no obligations to sort out the Rosebud from the Mikota flour but has the right to refuse the entire carload.” The difficulty with the defendant’s claim is that on the evidence the jury could find, and presumably did find, that the plaintiff sent the Rosebud flour on trial under an express agreement with the defendant; and that, upon Snell’s refusal to take this pastry flour, the plaintiff "eliminated” it from the car, and ordered the bank to reduce the draft by $105, the price charged for it. The judge rightly refused to give these requests, and left the issue to the jury under proper instructions.

The sixteenth, seventeenth, eighteenth and twenty-seventh requests, relating to damages, apparently are based upon an assumption that, after the defendant refused to accept the carload of flour, the plaintiff proceeded to purchase and mill wheat with which to fill the remainder of the defendant’s order. See sales act, G. L. c. 106, § 53, cl. 4. Centennial Electric Co. v. Morse, 227 Mass. 486, 490. The evidence, however, would warrant the jury in finding that the plaintiff had on hand a quantity of wheat sufficient to fulfil the order at the time when the contract was made; and that the price agreed on for this flour was based on the then market price of wheat plus the cost of milling, less the value of the mill feed obtained in the operation. In fact the jury could find that the plaintiff had already manufactured the flour to fulfil the balance of the contract. Among other things it appeared that the remainder of the flour contracted for was sold early in March, 1911, to a dealer in Springfield, and at the same market value as that prevailing during January and February, there being no available market in Fall River for the flour which the defendant refused to accept. The court fully protected the defendant’s rights on this branch of the case by ruling that "upon the refusal of the defendant to receive any more flour under the contract, the plaintiff was under the duty of not manufacturing any more flour for him and of not incurring any further expense on his account.”

On the issue of the quality of the flour, the judge told the jury, as requested by the defendant: “29. In order to recover in this action, the burden of proof is on the plaintiff to establish by a fair preponderance of the evidence that this flour delivered by it to the defendant was O.K., merchantable, wholesome and fit for making bread; that the defendant refused to receive the flour without justifiable reason, and that it suffered damages thereby.” He also instructed them: “22. Unless the plaintiff was ready and willing to deliver the balance of the flour under the contract of October 18, 1910, and requested the defendant to take delivery, the defendant was not liable to any loss caused by his not taking said flour;” and “25. If the plaintiff is entitled to damages because of the defendant’s refusal to take the third car, the measure of the damages is the difference between the contract price of $5.25 per barrel and the market value of the flour when the defendant refused to take the flour.”

The charge covered every aspect of the case accurately and adequately. We find no error in the conduct of the trial.

Exceptions overruled.