263 Mass. 467 | Mass. | 1928
This is an action of contract upon an account annexed in which the plaintiff seeks to recover $410.95 — the balance alleged to be due on a shipment of three thousand, two hundred forty-two pounds of merino hosiery clips at thirty-eight cents a pound, amounting to $1,231.96, and $4 for sixteen bags in which the clips were shipped, making a total of $1,235.96, subject to a credit of $825.01. The defendant’s answer is a general denial, a special plea of payment and of accord and satisfaction. The case is before this court on appeal from an order, “Report dismissed,” by the Appellate Division of the Municipal Court of the City of Boston.
It was agreed at the trial that $1,235.96 was the agreed sale price, that the defendant bought the goods as set forth in the plaintiff’s declaration, and that the sale was a sale by sample. Evidence introduced at the trial by the defendant tended to show that the sample upon which the goods were sold contained sixty-three per cent wool. Evidence introduced by the plaintiff tended to show that the sample contained approximately forty per cent wool. The report in terms makes no finding as to which contention was right.
The evidence showed the clips which were shipped contained between thirty-eight and thirty-nine per cent wool, and the evidence for the defendant was that a variance of three to five per cent as to the wool content would not be considered by the defendant a variance sufficient to cause rejection of the shipment. The report states that the defendant upon receipt of the shipment refused to accept the same, for the reason that the wool did not correspond to the wool percentage in the sample, and that the shipment contained a certain amount of colored goods, whereas the sample did not. The report makes no finding as to this complaint, nor does it appear that evidence was introduced.
The defendant, by a letter dated June 22, 1926, which is not in the report, “asked the plaintiff for shipping instructions for the goods stating that it refused to accept the same.” After some correspondence, a representative of the plaintiff went to the defendant’s mill in Connecticut, and evidence, which was contradicted by the plaintiff, was introduced by the defendant, tending “to show that an agreement was then made that the defendant should accept the goods and would deduct from the plaintiff’s bill labor charges for sorting the colored stock from the rest of the shipment, and % cent per pound for each 1% of wool in the shipment less than in the sample.” July 1, 1926, by letter, the defendant confirmed the agreement as it understood it, saying “If this is not in accordance with your understanding of the agreement please wire us on receipt of this letter.” On July 2, 1926, not having received wire or other communication in response to its letter of July 1, the defendant sent the plaintiff a check in the amount of $825.01, with a statement and letter. This statement showed a deduction of $402.62, computed “by deducting from the original contract price of 38 cents per pound, one-half cent per pound for each per cent of wool in the shipment less than in the sample; that the sample tested 63% wool and the shipment 39% wool, being a difference of 24% which at one-half a cent per pound on 3,242 pounds originally shipped less 33 pounds returned to the plaintiff as colored stock made a total of three hundred eighty-five dollars and eight cents ($385.08). A further deduction of 38 cents per pound for 33 pounds of colored stock returned to the plaintiff being twelve dollars and fifty-four cents ($12.54) and a charge for ten hours labor in sorting out the colored stock of five dollars ($5.00).” The letter accompanying the check and statement is as follows: “Enclosed please find our check for $825.01 in settlement of your bill of June 4th. As per agreement with your Mr. Lyons, we sorted the colored stock out of the shipment and mixed the balance of it in one pile on the floor. We then garnetted several hundred pounds from this mixture and tested the
At the close of the evidence and before final arguments the defendant made the following requests for rulings, all of which were denied by the judge, those numbered one and two being denied as inapplicable:
“I. Upon all the evidence the plaintiff is not entitled to recover due to the fact that a complete settlement of the plaintiff’s claim was agreed upon between the parties on or about July 1, 1926, and thereafter the said settlement was completely carried out, and the plaintiff accepted and cashed a check in the amount of eight hundred twenty-five dollars and one cent ($825.01) as full settlement of its claim against the defendant.
. “II. The failure of the plaintiff to reply to the defendant’s letter of July 1st amounted to an acceptance of the proposition stated in that letter and the plaintiff was thereafter bound thereby.
“III. If the plaintiff accepted and cashed the defendant’s check for eight hundred twenty-five dollars and one cent ($825.01) which was sent to the plaintiff with the defendant’s letter of July 2nd stating that it was in settlement of the plaintiff’s claim, the plaintiff is thereby barred and cannot recover in this action.”
The judge found for the plaintiff on its declaration, and reported the case to the Appellate Division for determination.
So ordered.