J. P. Eustis Manufacturing Co. v. Saco Brick Co.

201 Mass. 391 | Mass. | 1909

Morton, J.

This case was before this court in 198 Mass. 212. After the decision in that case the plaintiff amended by making the Bruce-Merriam-Abbott Company a party defendant and the case was heard upon the merits and the court ordered a decree to be entered dismissing the bill with costs. The plaintiff appealed. The evidence, which consisted of the oral testimony of one witness, the treasurer of the plaintiff company, and various exhibits, was taken by a commissioner and is all before us.

The bill seeks in effect to reform a contract purporting to have been entered into between the plaintiff and the defendant on the ground that the parties intended and understood the contract to be one between the Bruce-Merriam-Abbott Company and the defendant and not between the plaintiff and the defendant, and that the contract in its present form was due to mutual mistake and misapprehension on the part of the plaintiff and the defendant. The bill also seeks to have the defendant enjoined from prosecuting an action at law which it has brought against the plaintiff and which is still pending, to recover damages for breaches of the contract alleged tb have been committed by the plaintiff.

The contention of the plaintiff was and is that it was acting as general agent of the Bruce-Merriam-Abbott Company, and that there was no intention or expectation on the part of the defendant and itself that the plaintiff should be bound by the contract. This was and is denied by the defendant. It insists that the contract was made, as it was intended to be made, with the plaintiff and not the Bruce-Merriam-Abbott Company. The issue thus presented was clearly one of fact, and there was ample evidence to warrant the decree. The contract itself, though one of the printed blanks of the Bruce-Merriam-Abbott Company was used, expressly provides that the title and right of possession shall remain in the plaintiff company until payment is made in full, and that, if such payment is not made, the plaintiff may take possession of the engine. It could have been found that no satisfactory explanation of this provision was offered by the plaintiff’s treasurer if, as he testified in substance, he did not intend the contract to bind the plaintiff to the defendant or the defendant to the plaintiff. There was also evidence tending to show that the plaintiff treated the transaction between it and the Bruce-Merriam-Abbott Company as one between seller and buyer rather than between principal and agent. It paid that company for the engine before receiving the amount due from the defendant instead of waiting, as it would have been more natural to do if acting as agent, till it had received the money from the defendant and then remitting it to the Bruce-Merriam-Abbott Company. It also paid a third party a commission on the sale. Further, there was no evidence that the defendant intended or understood the contract to be one between it and the Bruce-Merriam-Abbott Company. On the contrary it distinctly repudiated any such understanding or intention when the matter was called to its attention by the plaintiff, and it could have been found that the alleged mistake lacked the element of mutuality which was necessary to warrant a reformation of the contract. Eustis Manuf. Co. v. Saco Brick Co. 198 Mass. 212. Livingstone v. Murphy, 187 Mass. 315. For these and other reasons the finding in favor of the defendant was well warranted.

The decree will be so modified as to include the costs of this appeal and then will be affirmed with double costs.

So ordered.