Fowle v. Pitt & Scott, Ltd., 183 Mass. 351

Fowle v. Pitt & Scott, Ltd.

183 Mass. 351 | Mass. | 1903

Hammond, J.

It appeared “ that prior to the thirteenth day of January, 1900, the plaintiffs had sent to the defendant, at its office in Boston, packages of their goods to be forwarded by the defendant to the addresses thereof in foreign countries, without directions as to the particular steamship or line by which said goods were to be transported, other than that the goods were to be forwarded by the first steamer from New York sailing" for the port to which said goods were consigned, and in accordance therewith the defendant had always forwarded such packages by the first steamer sailing for such port of consignment.” The judge also found as a fact that the goods in question, addressed “ L. 0. Beaudry, Havre, France,” were sent by a local express to the office of the defendant in Boston, with no other or special instructions as to the manner of forwarding them to said Beaudry at Havre.

Under these circumstances, it is plain that, in accordance with the usual course of dealing between the parties, it was the intention of the plaintiffs that their goods should be shipped by the first steamer which should leave New York for Havre after the arrival of the goods in New York. It is further found as a fact *354that the name “ John Sanderson ” was inserted in the bill of lading, under the misapprehension that that steamship was the first to sail for Havre after the arrival of the plaintiffs’ goods in New York. It was the intention of the defendant to ship by the first steamship for Havre. That was the clear understanding of both parties, and in that respect they agreed. Intending to put that agreement in writing, the defendant made out and de^ livered the bill of lading to the plaintiffs. At that time the John Sanderson was not advertised to sail for Havre, but was lying in New York bound for South America, for which she soon after sailed. The insertion of the name “ John Sanderson ” was a mistake on the part of the defendant, and the acceptance of the bill by the plaintiffs as the statement of the name of the steamship was a mistake. The mistake was in inserting the name of “John Sanderson” as the steamer agreed upon. She was not the steamer, intended, namely, the first steamer to leave New York for Havre, but the bill of lading was made out by the defendant and received by the plaintiffs under the mistake that she was; and this was a mutual mistake as to the same thing, .namely, the name of the next steamship to leave New York for Havre. The. facts therefore show that by reason of a mutual mistake the bill of lading did not properly set out the actual contract with respect to the steamer upon which the goods were to be shipped, and a bill in equity would lie to correct it in this respect.

Under R. L. c. 173,, § 28, a “ defendant may allege in defence any facts which would entitle him in equity to be absolutely and unconditionally relieved against the plaintiff’s claim or cause of action.” The answer is broad enough to open this defence. It sets out that the goods were duly shipped in performance of the oral contract, that the goods would be shipped by the first steamer, that the name “John Sanderson ” was inserted in the bill of lading by the defendant’s agent in the mistaken belief that that was the first steamer, and that the bill of sale was received by the plaintiffs with the same belief. It is plain that the defendant intended to rely upon this defence of mutual mistake.

It is urged by the’plaintiffs that in the finding for the plaintiffs is involved a finding by the court against the defendant upon *355the question of mutual mistake as a matter of fact. We do not understand the report in that way. We think that so far as material to that question the fair interpretation of the report is that, taking all the facts stated in the report, the mistake was not such a mistake as would be corrected in equity. And we are confirmed in this view by the closing sentence in the memorandum which was filed by the judge in the case, a copy of which is among the papers transmitted to us. The sentence reads thus : “ This does not seem to be a case of mutual mistake within the meaning of the cases cited by the defendant. As there seems to be no substantial controversy about the facts, the case, at the request of the defendant, may be continued for report.”

Since the goods seemed to have been shipped in the first steamer in accordance with the oral contract, and since for reasons above stated the written contract, in so far as inconsistent with the oral contract as to the particular steamer, is to be reformed so as to conform to the oral agreement, and since we do not understand that the Pauillac was not found to have been unseaworthy at the time of her departure, we think that the finding for the plaintiffs was not war-ranted. In accordance with the terms of the report there is to be a

New trial.