| Mass. | Oct 17, 1922
In this action the plaintiff recovered a verdict against the defendants because of their failure to deliver one thousand dozen ladies’ black, fibre silk hosiery. The case is in this court on the defendants’ exceptions.
The plaintiffs, in their letter of June 12,1919, to the defendants, quoted from the defendants’ telegram, “Delivery three weeks one thousand black two thousand white eighteen inch fibres six dollars” and stated, “We would be interested in taking 1000 dozen black, and 700 dozen white, ... if you wish to make the price $5.85.” The sizes were specified and the letter continued: “If this price is satisfactory, kindly send confirmation, and your best terms.” It was agreed that the words “eighteen inch fibres” when applied to hosiery meant eighteen inches from the top of the hose to the bottom of the heel. On June 16, 1919, the defendants wrote the plaintiffs accepting the “offer of $5.85” and specified the terms as one per cent, ten days. It was agreed that one per cent ten days meant one per cent discount if paid within ten days. The hosiery was sent to the plaintiffs, and on June 27, 1919, the plaintiffs again wrote the defendants, acknowledging receipt of the merchandise, notifying them that the eighteen inch fibre hosiery was not as ordered, but was sixteen inch fibre, and saying that their order specifically stated that the goods were to be “18 inch;” and asked, “If it was impossible to fill the order as requested, why did you accept same?” The seven hundred dozen white fibre silk hosiery were delivered and accepted by the plaintiffs.
The judge instructed the jury that on the evidence there was a contract as matter of law. To this ruling the defendants excepted. Even if it be assumed, without deciding that the plaintiffs’ letter of June 12 and the defendants’ reply of June 16, taken together, did not constitute a contract because the defendants’ terms (one per cent ten days) were not agreed to by the plaintiffs and they were at liberty to reject the terms offered, the undisputed evidence showed that these terms were in fact assented to by the plaintiffs. In the letter of June 27 the plaintiffs acknowledge the receipt of the goods. They offered no objection to the defendants’ terms of payment. Their only complaint was that the goods were not
It was agreed that July 7, 1919, would have been the date of delivery as called for in the letters of June 12 and June 16. But there was evidence that the time for performance had been extended. Both the plaintiffs and the defendants considered the contract still subsisting, as shown by their correspondence, and the jury could find that it was not until February 27, 1920, that the plaintiffs refused consent to a further extension of time for delivery, and elected to treat the contract as broken. There was no error in the ruling made by the judge, that the question, whether the time for delivery had been extended, was a question of fact for the jury to decide. Ginz v. Axelrod, 235 Mass. 143" court="Mass." date_filed="1920-02-28" href="https://app.midpage.ai/document/ginz-v-axelrod-6435046?utm_source=webapp" opinion_id="6435046">235 Mass. 143. Thomas v. Barnes, 156 Mass. 581" court="Mass." date_filed="1892-06-23" href="https://app.midpage.ai/document/thomas-v-barnes-6424264?utm_source=webapp" opinion_id="6424264">156 Mass. 581, 584.
Exceptions overruled.