Samuels v. W. H. Miner Chocolate Co.

235 Mass. 312 | Mass. | 1920

De Courcy, J.

The judge was warranted in finding that the contract between the parties was not wholly embodied in the defendant’s letter of April 17, 1917, confirming the plaintiff’s order. See Davis v. Tremont Trust Co. 234 Mass. 502. He had before him the report of the auditor in this respect, which was as follows: “From the remainder of the above correspondence and the confirmation and such inferences of fact as may be drawn therefrom I find that the contract between the plaintiff and the defendant was for the purchase and delivery of two thousand (2000) barrels of cocoa at eleven and one-half cents (llj c.) per pound, to be shipped by the defendant at such times and in such amounts, not to exceed one hundred (100) barrels per week, as the plaintiff should direct. The plaintiff was not obliged to draw each and every week or at any particular time. On the other hand the defendant was not obliged to deliver in excess of one hundred (100) barrels per week. The whole two thousand (2000) barrels to be ordered shipped by the plaintiff during the year 1917, the first shipment to be made May 15, 1917. Payment for each shipment was to be made in advance and two per cent (2%) discount was to be allowed the plaintiff for cash.”

There was some delay on the part of the defendant in shipping cocoa to the plaintiff during June and July, owing to its inability to obtain the additional presses which it ordered. The auditor has found, however, that the plaintiff “waived any failure on the part of the defendant to deliver cocoa according to the terms of the contract prior to October 16, 1917.” On September 4, 1917, the defendant wrote the plaintiff “we will ship you one hundred (100) barrels this week and from this on we will be able to ship you about one hundred (100) barrels a week.” As matter of fact the defendant did ship one hundred barrels on September 5. The plaintiff before the arrival of this shipment wrote “as we had to go into the market last week and buy cocoa we would like to have you defer shipment as we are cramped for room.” This statement was untrue; the plaintiff had not made such purchase. The last order actually sent by him was on August 15. On September 18 he wrote the defendant not to ship any more cocoa “until we advise you, as we are very cramped for room. We will let you know exactly when we need our next shipment.” On September 27 the defendant wrote the plaintiff “this is to call your attention to your contract with us for cocoa powder. There is remaining about thirteen weeks to fulfil your contract. Under no circumstances will we accept an order for a larger quantity than one hundred (100) barrels a week, and we insist on this being placed with us now to complete your contract; otherwise we wish to cancel it.” Finally on October 16 the defendant wrote the plaintiff “the discontinuance of orders for cocoa powder from you has necessitated our cancelling your contract for cocoa powder.” To this letter the plaintiff did not reply.

The trial judge found for the defendant. That finding must stand if there was any substantial evidence to support it. The contract required the plaintiff to order the entire two thousand barrels between May 15 and December 31. When the contract was cancelled on October 16 there remained only about eleven weeks of the contract period. As only five hundred and fifteen barrels had then been ordered by the plaintiff, there remained fourteen hundred and eighty-five barrels; and the defendant was under no obligation to ship more than one hundred barrels per week. In addition to the failure of the plaintiff to send orders in compliance with his contract, there was a further neglect on his part to comply with the agreement, in his omission to forward a check for each lot before shipment was made. In the absence of any evidence to justify such conduct on the part of the plaintiff, we cannot say that the judge was not warranted in finding that he had broken the contract on his part, that his breach went to the essence of the contract, and that it justified the defendant in cancelling the rest of the order. Dudley v. Wye, 230 Mass. 350. Accordingly judgment must be entered for the defendant.

So ordered.