248 Mass. 553 | Mass. | 1924
The first of these two actions is in contract, brought by the Orr Felt and Blanket Company (hereinafter spoken of as Orr) against the Sherwin Wool Company (hereinafter called Sherwin). The second action is in contract brought by Sherwin against Orr. Both actions arise from the same transaction. Orr manufactured blankets at Piqua, Ohio; Sherwin was engaged in the rag business in Boston. Orr had no machinery for making rags into shoddy, but agreed to buy rags from- Sherwin if he would have them
There was evidence that during the negotiations which led up to the placing of this order (hereafter referred to as the white serge order) Sherwin shipped a bale of rags to a shoddy mill, in his name, where the rags were picked and carded on Orr’s account. Subsequent to the order, shipments of rags to shoddy makers were for the account of Orr but this fact was not known to the shoddy makers. The rags converted into shoddy were returned to Sherwin, and reshipped by him to Orr in the same container in which they had been received from the shoddy makers, and generally in the same freight car. The first shipment of five hundred and twenty-five pounds and another shipment of twelve thousand one hundred and fifty-two pounds were accepted and paid for by Orr. On December 20, 1917, Sherwin shipped twenty-eight thousand nine hundred and seven pounds of white serge rags to the shoddy mill and on the same date sent to Orr an invoice of this shipment. The amount of this invoice, $13,297.22, was paid by Orr. This shipment of rags was made into shoddy and sent to Orr in several lots. A portion of this shipment was accepted and used by Orr but the last four lots received'July 3, 10, 12 and 13, amounting to seventeen thousand pounds of rags or sixteen thousand one hundred and fifty-five pounds of shoddy (the rags shrinking in the process of picking or carding) were rejected by Orr, on the ground that they were not equal in quality to that called for by the contract. Orr seeks to recover $8,174.20, which amount it is admitted he paid for sixteen thousand one hundred and fifty-five pounds rejected.
It was agreed that $8,174.20 and $21,291.36 were paid by Orr and received by Sherwin. In the action brought by Orr, there was a verdict in the sum of $33,836.28 for the plaintiff.
Sherwin seeks to recover the sum of $9,897.55 on an account annexed, for merchandise sold, also for picking and carding the rags. Orr admitted he owed Sherwin for materials received by him. Sherwin received a verdict in the sum of $1,086.02.
The ninth count in Orr’s declaration is to the effect that the parties entered into a contract for the purchase and sale of fifty thousand pounds of white serge; that Orr paid for a certain number of pounds of this material; that thereafter Sherwin delivered the merchandise “ pursuant to the amount so paid for; ” that of said amount sixteen thousand one hundred and fifty-five pounds were not of the order and quality specified; and that Orr rejected the same and has since held them subject to Sherwin’s order. Sherwin asked the trial judge to instruct the jury that Orr was not entitled to recover on this count; the contention of Sherwin being that the white serge contract was an indivisible contract, that the buyer could not reject a part of the goods.
The last four shipments made to Orr, that is, the shipments made on July 3, July 10, July 12, and July 13, were
The goods were sent to the shoddy makers by Sherwin in instalments, and it was only a part of this shipment to the shoddy makers that Orr attempted to reject. If the shoddy manufacturers were the agents of Orr to accept the shipments, there would be force in Sherwin’s contention that a portion of the shipment to them could not be retained and the remainder rejected, that it could not be rejected in part. This, however, was a question for the jury; and they must have found by their verdict that the shoddy manufacturers were not the agents of Orr to accept, and therefore, he could make the inspection on arrival of each shipment to him at his factory, which he did, and the four entire instalments received by him were after inspection rejected. Even if the title passed to Orr he could reject the goods if upon examination they did not conform to the warranty. Alden v. Hart, 161 Mass. 576, 581. Williston on Sales, § 474.
Even if this were a sale of rags, as contended by Sherwin, Orr still had the right to test them when they came to his factory; and if in the process of picking and carding a portion of the material was destroyed, he was not deprived of his right of inspection and to reject the goods, although not in the form in which they were when sent to the shoddy manufacturers. See Williston on Sales, § 475. O’Shea v. Vaughn, 201 Mass. 412, 420.
Sherwin also asked the judge to instruct the jury, in effect, that if the white serge and brown worsted clips were delivered to the shoddy makers on the request of Orr to have the merchandise picked and carded for him, and were so delivered by Sherwin, and were of the quality ordered, and the shoddy makers accepted the goods and made them into shoddy, then Sherwin completed the contract by this delivery. It was a question of fact whether the shoddy manufacturers were the agents of Orr to accept the goods, and it was properly left to the jury to decide under full and appropriate instructions. Savage v. Blackstone Beef Co. 222 Mass. 81.
Orr offered a letter from him to Sherwin dated September 26, 1918, parts of which were self-serving statements. Sherwin contends that, the letter having been admitted under his exception, there was error in this ruling. Some of the statements in the letter were not self-serving, and it was the duty of Sherwin, when the letter was offered, to request that it should be limited to the statements which were not self-serving; the objections by Sherwin were not sufficiently specific on this point, and this exception is overruled. Everson v. Casualty Co. of America, 208 Mass. 214. Wagman v. Ziskind, 234 Mass. 509. Eveland v. Lawson, 240 Mass. 99.
Raymond S. Bartlett was Orr’s agent when the contracts were made, and they were made with Sherwin by Bartlett. He left Orr’s employment in March, 1918, the goods rejected by Orr were received after Bartlett had ceased to work for Orr. There was evidence tending to show that at the time of the trial Bartlett was in Boston employed by the American Woolen Company, and had been interviewed by a representative of Orr, and had been seen by Sherwin “ within two weeks perhaps.” Bartlett was not called as a witness by either party. Sherwin asked to have the jury
There was no error in the conduct of the trial. In each case, the order is,
Exceptions overruled.