Morton v. Clark, 184 Mass. 555

184 Mass. 555 | Mass. | 1904

Knowlton, C. J.

This is an action to recover damages for a breach of an oral contract for the sale of goods. The case came before this court after the first trial, and was reported in 181 Mass. 134. Most of the questions now before us were raised by the defendants’ requests for rulings, and relate chiefly to the findings required by the evidence, which are essentially matters of fact. The defendants’ demurrer to the amended declaration has not been argued, and we need not consider it.

The defendants contend that the judge should have found, either that no contract was made, or that, if a contract was made, it was upon a ten days’ or cash basis. On this subject the evidence was somewhat conflicting. There is no doubt that a contract was made, all the terms of which were sufficiently clear and were not in dispute, except the provision as to the time of payment. There was evidence in the previous course of dealing between the parties, and in the testimony of Mortimer, the plaintiff’s agent, and in the correspondence, which tended to show that the payments were to be made by the acceptance and payment of drafts drawn by the defendants upon the plaintiff on sixty days’ time, with occasionally one on ten days’ time. This was in accordance with the averments of the amended declaration. It was a part of the course of dealing that, when drafts were made on time, interest was added to the face of the bill up to the day when the draft was payable, so that the amount received from his banker by the vendor would be the same on a draft for a long time as upon a draft for a short time, the only difference to the parties between the two modes of payment being in the amount of capital or discounts or credit for which they would have to provide. The fact that there was a subsequent misunderstanding and disagreement between the parties in regard to the terms of payment does not prevent a finding of what they ought to have understood from their memorandum and conversation, taken in connection with their previous dealings.^*

There is no material variance between the findings of the judge and the amended declaration. He found that the contract as to payment was “on sixty day drafts except ‘occasionally ... on ten days’ drafts.’ ” His finding by way of explanation of. the term “ occasionally”, that it was “ when the defendants were compelled to ” draw on short time by a reasonable regard for the exigencies of the business, is simply giving the term its natural meaning when it is taken in connection with the facts and circumstances existing and referred to on the occasion when it was used by the parties. See Black v. Bachelder, 120 Mass. 171. After this finding as to the contract, the finding that there was a breach of it necessarily followed.

It is not necessary to consider other questions raised at the trial.

Exceptions overruled.

* See Higgins v. Shepard, 182 Mass. 364.