235 Mass. 143 | Mass. | 1920
It is conceded that on March 29, 1918, a contract was made whereby the defendant agreed to sell and the plaintiffs agreed to purchase on thirty days’ credit certain pieces of velour, part of which was to be delivered in August and the remainder in September of that year. The sole controversy is whether the
The material parts of the correspondence are as follows: May 14, 1918, (plaintiffs to defendant) “I want to change the shipping instructions on order $ 593 of March 29th. Send those goods on July 10th or as much of same as you can.” May 17,1918, (defendant to plaintiffs) “I have received your letter of the 14th inst. and have made note to send your goods on date requested. I shall do my utmost to have the goods shipped at that time.” July 18, 1918, (plaintiffs to defendant) “We wrote you some time ago to ship the goods which we ordered from you on March 20th, on July 10th. As we have received no invoice from you up to this writing we will ask you to kindly give this matter your attention and ship our goods to us at once and oblige.” July 22, 1918, (defendant to plaintiffs) “With reference to your order for velour coatings, want to advise that I have these goods ready for delivery, and if you will send me a check to cover this invoice, will make shipment immediately. . . . Your copy of order, on these goods, reads Net 30 Days, but am not in a position to give these terms at present, you may, therefore, deduct the interest for the unexpired time at the rate of 6% per annum. Shall expect to hear from you at once.” July 23, 1918, (plaintiffs to defendant) “Your letter of the 22nd inst., is totally at variance with the terms of your acceptance of our order which is Net 30 days and not cash either before or on delivery. You admit in your letter that you have the goods which we bought from you on hand and ready for delivery and in view of this admission we are entitled to the delivery of this goods without further delay or conditions pursuant to the terms of the order and we hereby call upon you to make such delivery. This is the final position we take under our contract with you for the protection of our rights. Please ship goods by express and send us invoice by return mail. In as much as you have the goods now on hand you are in a position
The defendant does not dispute the elementary proposition that the contract could be modified by mutual agreement, but urges that no finding of such change was justified by the evidence> because the minds of the parties never met as to the proposed variation in the time of delivery.
The trial judge found that the time of delivery had been changed by mutual agreement. In effect the defendant conceded by his letters that the modification was in existence, that he was ready and willing to ship the goods, that he refused to do so only because the plaintiffs were unwilling to pay therefor before delivery, and that said refusal was solely because he was, using his own language, "not in a position to give []the plaintiffs]] these terms [Thirty days] credit]] at present” and did not wish to give any credit for reasons he did not “care . . . to state.” The plaintiffs rightfully refused to pay for the goods before delivery, and they never were delivered. This action was brought November 6, 1918, to recover damages sustained by the failure of the defendant to perform the contract as modified, and the judge of the Municipal Court of the City of Boston before whom the case was tried found for the plaintiffs, and the Appellate Division of the court upheld his finding and dismissed the report. The finding was justified by the evidence. Bristol Manuf. Corp. v. Arkwright Mills, 213 Mass. 172. Gouzoulas v. F. W. Stock & Sons, 223 Mass. 537.
While there were numerous requests for rulings, none have
So ordered.
