| Mass. | Dec 4, 1922
These are two cross actions of contract, arising out of three written agreements providing for the sale by Elroy (hereinafter called the plaintiff), and the purchase by Schimmel (hereinafter called the defendant), of five carloads of cotton waste, described in the agreements as “New Bedford Undusted Picker.” The plaintiff was a dealer in cotton waste, in Boston; the defendant a dealer in the same material in New York. The first action is for the purchase price of merchandise which the defendant refused to accept. In the second action it is alleged there was a failure to deliver goods according to the quality provided for in the agreement.
The first contract, which was prepared by the plaintiff, was dated October 29, 1918. It stated: “We Beg To Confirm Having Sold To You The Following.” Then follow the terms, quantity and price, the material, designated as “New Bedford Undusted Picker,” to be shipped on open bill of lading to Harry Schimmel, Newark, New Jersey; and under the heading “Remarks” the statement appears: “As per telephone conversation with Mr. Schimmel.” The contract was signed by the plaintiff and "Accepted Harry Schimmel.” Upon Schimmel’s memorandum of purchase there were printed the words: “Rules of the American Cotton Waste Exchange to Govern this Sale, unless Otherwise Stipulated,” The remainder of the writing was like the contract prepared by the plaintiff. The second contract, dated October 29, 1918, for two carloads, in so far as material, was substantially the same as the first contract, except that under the printed heading “Remarks” there was the statement, “As per telephone conversation of even date with Mr. Schimmel.” The other contract dated November 21, 1918, for two carloads, was similar except that the telephone conversation with Schimmel was stated as "on yesterday;” and that after the words “New Bedford Undusted Picker” there was added, “same quality as had.”
The plaintiff testified that by the term “New Bedford Undusted Picker” no particular quality was designated, and that the expression was merely to describe the place where the goods originated. The plaintiff introduced evidence tending to show that it. had no particular quality significance and that there was
The auditor found for Kilroy both in her action against Schimmel and in the action of Schimmel against her. In the Superior Court the jury returned a verdict for her in each case.
The judge instructed the jury in effect, that if the expression “New Bedford Undusted Picker” had a trade significance it was for them to decide whether the goods came up to that quality which the trade term required; and that if the words had no trade significance, they must be given their “ordinary, everyday meaning.” Concerning the telephone conversation, preceding the signing of the contract, in which the defendant claimed the plaintiff said the waste was the average mill run of New Bedford waste, which conversation was denied by the plaintiff, who testified that in this talk there was no mention of quality save as contained in the words “New Bedford Undusted Picker,” the' jury were instructed that they were to decide whether the plaintiff made the statement as claimed by the defendant. If they found that she made the statement, the evidence was to be used solely for the purpose of determining whether the term “New Bedford Undusted Picker” had a trade significance. If there was no question “of trade meaning of those words in this case, the evidence which has been offered in regard to that alleged telephonic communication would not have been admitted and you could not consider it, because you cannot change a written contract by any oral evidence.”
The defendant excepted to these instructions. His claim is that the telephone conversation between the parties prior to the signing of the written contract was admissible to alter or
The written contract shows on its face that it includes the entire agreement of the parties and comprises all that was necessary to constitute a contract. The names of the parties, price, terms of sale, quality of the goods, and all the essential elements of a complete contract are present. The writing was not a mere bill of parcels, or an incomplete record of the agreement, and the oral warranty could not be added to the written contract. Mears v. Smith, 199 Mass. 319" court="Mass." date_filed="1908-06-16" href="https://app.midpage.ai/document/mears-v-smith-6430333?utm_source=webapp" opinion_id="6430333">199 Mass. 319, 322. Commonwealth Trust Co. v. Coveney, 200 Mass. 379" court="Mass." date_filed="1909-01-05" href="https://app.midpage.ai/document/commonwealth-trust-co-v-coveney-6430463?utm_source=webapp" opinion_id="6430463">200 Mass. 379, 381. Cawley v. Jean, 218 Mass. 263" court="Mass." date_filed="1914-06-17" href="https://app.midpage.ai/document/cawley-v-jean-6432779?utm_source=webapp" opinion_id="6432779">218 Mass. 263. Glackin v. Bennett, 226 Mass. 316" court="Mass." date_filed="1917-03-10" href="https://app.midpage.ai/document/glackin-v-bennett-6433912?utm_source=webapp" opinion_id="6433912">226 Mass. 316.
The words “as per telephone conversation with Mr. Sehimmel” incorporated nothing into the written agreement. The terms of the agreement as completed by the writing, could not be varied by the prior conversation. If the parties agreed that the goods were to be of average mill run waste they could have made such provision; a mere reference to the earlier or contemporaneous talk did not give the defendant the right to show the oral warranty. The reference meant no more than that there had been a previous conversation from which the final contract originated, and it did not make the conversation admissible to vary the written contract. There was no error in the instructions given on this point.
The contract signed by the defendant contained the statement, “Rules of the American Cotton Waste Exchange to Govern this Sale, unless Otherwise Stipulated.” Article 3, Section 2 of the rules of the American Cotton Waste Exchange provided: “If claim of inferior quality is not made by the buyer in writing to the seller within ten (10) business days after receipt of any shipment or within three days after he discovers the goods to be false packed, the shipment will be deemed accepted.” It was undisputed that the carload under the first contract was shipped October 31,1918, and arrived at its destination November 8, 1918. It was not until more than ten days thereafter, on
The merchandise shipped under the three contracts was of substantially the same quality. The waste came from the same mill in New Bedford. The defence that it was not in accordance with the quality called for by the trade name, was the same as the claim in the action against Kilroy. In returning a verdict for the plaintiff in the first action, and for the defendant in the second, the jury must have been satisfied that the words “New Bedford Undusted Picker” had no trade significance, or if they did, that the merchandise was according to the designation. They could not have found as they did with reference to the goods shipped under the second and third contracts, unless they were satisfied that the words “New Bedford Undusted Picker” had.no trade significance; and.if the words did have this significance, that the waste was in accordance with the trade designation. The jury were fully instructed on this point. They were told that the rule of the exchange applied only to the first carload, because as to the subsequent carloads the claim of imperfect material was made within ten days. In view of these considerations we do not think the defendant was harmed by the failure to give the third request, or the second request, in so far as the first carload was concerned in the action against Schimmel; nor by the refusal to give the second request in the case against ICilroy as to the first carload, and the refusal of the first request in this action, nor by the instructions given; even if there were error of law in the refusal and in the instructions given on this aspect of the case, which we do not mean to intimate.
In each case exceptions are overruled.
So ordered.