Morrison v. Browne

191 Mass. 65 | Mass. | 1906

Morton, J.

This is an action of contract to recover damages for failure to deliver a cargo of coal. The question is whether there was a sufficient memorandum of the contract within the statute of frauds. The judge ruled that there was not, and directed a verdict for the defendants, and the case is here on exceptions by the plaintiff to this ruling. We think that the ruling was wrong, and that the case should have been submitted to the jury under proper instructions.

There was testimony tending to show that a sale was made as alleged, and the jury should have been instructed that if they found that, taking all of the circumstances into account, a sale was made as alleged, then the writing relied on constituted a sufficient memorandum within the statute. As was said of the memorandum in Sanborn v. Flagler, 9 Allen, 474, so it may be said of the memorandum here: “The nature and description of the merchandise, the quantity sold, the price to be paid therefor, the terms of payment and the time within which the article was to be delivered, are all clearly set forth.” According to the terms of the memorandum, the coal was to be shipped and billed to John Morrison (the plaintiff), thus clearly indicating him as the purchaser, and the memorandum was signed by the defendants, the parties to be charged thereby. It is to be regarded also, we think, as a memorandum of a sale, and not of an offer to sell. It states that “ we have entered an order for a barge load of anthracite coal ”; and one of the defendants testified, though subsequently qualifying it, that in making this entry “ he thought that he followed out his usual custom when making a contract for the sale of coal.” It also states that, “ we have bought this coal with the understanding that it is to be loaded next week, and have engaged a barge of about 800 tons’ capacity from the Bee Line Transportation Co. at $1.25 freight to transport same,”—circumstances which are more consistent, to say the least, with an actual sale than with an offer to sell. The concluding sentence in which the defendants ask Betteley, to whom the writing containing the memorandum is addressed, to “get Mr. Morrison to send us a written confirmation of this order,” can only be regarded, we think, as a request to him to do what he there is asked to do. Moreover, if the written confirmation there asked for could be regarded as in the nature of a condition precedent, there was evidence which would have warranted the jury in finding that the defendants were content with an oral confirmation by the plaintiff and waived a confirmation in writing. The objection that the sale was to Betteley because the writing containing the memorandum was addressed to him does not need extended consideration. As already observed the memorandum clearly designates Morrison as the party to whom the coal was sold, and there was evidence tending to show that Betteley was acting only as a broker.

Exceptions sustained.