146 Mass. 211 | Mass. | 1888
The jury have found, under instructions to which no exception was taken, that the sugars delivered were Maroim brown sugars, within the meaning of the contract, and that there was no usage by which the defendant was entitled to reject the sugars because they fell below the test, which the contract made the' basis of settlement, by more than two or three degrees of the polariscope.
It is plain that the sugars were shipped by the vessel intended by the parties to the contract; that this vessel might well have
The defendant contends that there was evidence of a false representation of fact made by the agent of the plaintiffs whereby the defendant’s agent was induced to make the contract. If any such representation was made, it was made by Verplanck, the broker, and it is said that there was evidence that a representation was made by him that the sugars were “ of eighty-four degrees test.” “ The defendant’s counsel admitted to the court that he had no evidence to show that Verplanck or Smith and Schipper knew at the time of the sale that the quality of the cargo was not as defendant claimed it was stated by Verplanck.” There was no evidence that the plaintiffs knew that Verplanck ever made any such representation, or ever authorized him to make any such representation. The contention is, that if Verplanck, as agent of the plaintiffs, made a positive representation of fact, although he was not authorized by them to make it, and they did not know that he had made it, and although he believed it to be true, yet, if the defendant’s agent relied upon it in making the contract, the defendant could rescind the contract, if the representation was actually false. If we assume that this is the law, we are yet of opinion that the evidence recited in the exceptions would not have warranted the jury in finding that Verplanck made any statement which was, or was understood by the defendant’s agent to be, a positive representation of an existing fact relating to an ascertained lot of sugars.
There was no evidence that there was an ascertained lot of sugars in existence which Verplanck offered to sell, or that the defendant’s agent who made the contract understood that Verplanck represented that there was such a lot of sugars which would test exactly eighty-four degrees. It appears that the defendant’s agent clearly understood that the sugars when selected and put on board would vary somewhat from this test, and no contract was made limiting the extent of this variation, and no representation that it would not exceed any definite limit. So far as appears, Verplanck showed to the defendant's agent all the information he had concerning the sugars, and there is no evidence that the defendant’s agent understood that Verplanck had any per
Contracts of sale of articles thereafter to be selected cannot be rescinded because before the making of the contracts there may have been an honest expression of opinion, or an honest statement of fact not purporting to be as of knowledge, that when the articles are selected in conformity with the contracts they will be of a better quality than they prove to be. We are not aware that in this Commonwealth there is in this respect any different rule in equity from that which obtains at law. King v. Eagle Mills, 10 Allen, 548. Pike v. Fay, 101 Mass. 134. Litchfield v. Hutchinson, 117 Mass. 195. Ormrod v. Kuth, 14 M. & W. 651.
The measure of damages was the difference between the contract price and the market value at the time and place of delivery. If the evidence that the market price of sugars had fallen between the date of the contract and the time when the cargo arrived and was landed was admitted for the purpose of proving this market value, it may have been competent in connection with other evidence; the fact that the evidence was rendered unnecessary by the concession of the defendant does not make the admission of it a ground for a new trial. Priest v. Groton, 103 Mass. 530, 540. Jennings v. Whitehead & Atherton Machine Co. 138 Mass. 594. It does not appear that this evi
jExceptions overruled.