170 Mass. 518 | Mass. | 1898
The exceptions in this case relate only to the first item in the plaintiff’s account, and to the allowance of interest on sundry other items. In regard to the first item, the only exception to the instructions is to a single sentence. The defendant contended that the goods charged in that item, consisting of certain ropes, were furnished by the plaintiff through the defendant as its agent, to be used by another corporation, under an arrangement that the defendant should not pay for the goods until he had collected the price from the corporation receiving and using them, The judge, after submitting this contention to
The only other exception specially bearing upon this item is to a refusal by the judge of the defendant’s offer to prove “ that two-inch diameter ropes are unfit to run in a one-and-three-quarter-inch diameter groove, and that a delivery of two-inch ropes is not a good delivery of ropes one and three quarters inches diameter.” The last part of this offer was to prove a fact so obvious that the court would have given it to the jury
The only part of the answer under which it can be argued that the question is open is as follows“ He denies the whole of item one of the account annexed to said declaration, and says he did not buy from the plaintiff the goods mentioned in said item, but that he sold said goods for the defendant as its agent, on commission, to the Argo Mills Co., delivered and put on and suitable in quality to run and do the work of transmitting power in a reasonably satisfactory manner, in the place in which they were to be put; that through fault of the plaintiff said goods were unsuitable in quality to run and do the work aforesaid; that said Argo Mills Co. is dissatisfied with said goods, and has not accepted them as being in fulfilment of the contract on which they were sold; that the defendant has not yet settled with said Argo Mills Co. for or concerning said goods, and that nothing is due the plaintiff on said goods, and nothing will be due the plaintiff thereon until said Argo Mills Co. shall be settled with for or concerning said goods.” Although these averments indicate a possible defence by the purchaser against the plaintiff, the substance of them is that the defendant was not the purchaser, but sold only as agent for the plaintiff, and that he had been unable to obtain any money as proceeds of the sale on the plaintiff’s account. The defendant’s offer of proof was immaterial to the defence that he sold only as the plaintiff’s agent, and was not himself a purchaser. There is nothing in the bill of exceptions to show that the defendant at any time sought to present to the jury the issue whether he might recoup in damages for breach of an implied warranty as to the kind or quality of the goods. There was no request for rulings upon this subject. The defendant testified to certain facts, which have some tendency to show that, if he had been alert in the protection of his rights, he might have defended on this ground, but his letter to the plaintiff, which he introduced, appears upon all the evidence
It is not contended that, if he was the purchaser and not a mere agent, he could escape altogether from liability for the ropes after retaining them and using them a year without objection.
The only other exception relates to the instruction in regard to interest. It appeared that the plaintiff was accustomed, when it sent the goods, to send a bill of them, on the face of which were the words, “ Terms thirty days.” The judge instructed the jury as follows: “ Now if all of those bills for these goods were in this form, terms stated at thirty days, and the party took the goods with that upon it and made no objection to that in any way, it would be an implied agreement that that was the time within which the goods were to be paid for, and that if they were not naid for, after that time interest would begin to run by
We are of opinion that the instruction was correct. In the absence of any agreement, the price of the goods would be payable on delivery. The parties could make any agreement about it that they chose to make. If the plaintiff notified the defendant that it was willing to give him a credit of thirty days on each bill, and that the price would be payable at the expiration of that time, it was a proposition in the defendant’s favor, and if he made no objection his assent would be implied, and he would be bound by the contract. The fact that in subsequent statements interest was not charged was evidence that the plaintiff was then willing to waive its legal right to interest; but in the absence of a settlement upon the statement, it would not deprive it of its right in this suit to recover interest according to the terms of the original contract.
Exceptions overruled.