Sorrells v. Ancona Co.

250 Mass. 381 | Mass. | 1924

Crosby, J.

This is an action of contract to recover for one hundred bales of cotton at twelve cents per pound. The contract was made by a letter written by the plaintiffs to the defendant and accepted by the latter. The letter is as follows:

“ THIS CONFIRMATION IS CONSIDERED AN ACCEPTANCE UNLESS ADVISED BY WIRE TO CONTRARY.

Order No.

Sorrells & Co.

66 Beaver St.,

Fall River, Mass., January 15, 1921.

The Ancona Company,

Fall River, Mass.

Dear Sirs:

We hereby confirm sale to you this day of 100 bales of cotton. Grading: As per actual samples submitted marked Corn at 12c. per pound. Cost and Freight Landed.

Destination Watuppa, Mass.

Notify.

Shipment. Immediate from Arkansas.

Reimbursement: Payment on arrival.

Remarks: New England Revised Terms.

Yours truly,

Sorrells & Co.

(Signed) Per Charles F. Brady, Atty.

Accepted.

(Signed) George D. Flynn, Treas.”

Under an ordinary contract of sale by sample, the plaintiffs to recover must show that the goods in bulk to be delivered correspond with the sample exhibited. Borden v. Fine, 212 Mass. 425. Williston on Sales, § 255.

The cotton was shipped from Arkansas to the defendant, who rejected it on the ground that it was not like the samples in grade. In the contract, following the heading “ Remarks ” are the words “ New England Revised Terms.” After the goods were rejected the parties submitted the matter to arbitration in accordance with the “ New England Revised Terms ”; those terms, so far as they relate to arbitration, are printed in the bill of exceptions. In part they are as follows:

“ 5 (Both) Whenever a specific lot of cotton purchased by actual samples does not equal the samples, the purchaser shall have the right to reject the lot if less than one-half is equal to the samples. If one-half or more is equal to the samples, the purchaser may reject the portion not equal to the samples, but in either event samples of the entire mark must be exhibited to the seller. The cost and actual expenses of handling the rejections shall be paid by the seller, and in case of rejection the seller shall not be called upon to replace. Interest may be charged from the date of payment for the cotton, to the date of reimbursement for the rejected cotton.”

“ 9. (Both) The New England Cotton Buyers’ Association, The Southern Cotton Shippers’ Association, and the Arkwright Club, shall each select one classer, these three to act in each case, to class or staple all cotton submitted to them for arbitration. In case of the sickness or absence of any one of them, the party selecting him may provide a temporary substitute.”

“ 11. (Both) Certificates of the decision of the classers shall be signed by all three of them if possible, but the decision of any two shall govern. The decision shall be final in every case without any appeal.”

“ 19. Any dispute between purchaser and seller as to whether a shipment conforms to the terms of a sale (except as to actual grade or staple, with regard to which the decision of the classers is final) the amount of any allowance, or the interpretation of any section of these terms, shall be referred to the Board of Appeal upon the request of either party in interest. The decision of the Board of Appeal shall be final. No person interested in the matter involved shall serve as a member of the Board of Appeal.”

There was evidence that the original one hundred samples from which the defendant purchased the cotton were submitted to the arbitration committee; that each sample represented a bale; that these samples were tagged and numbered and that the tag number bore the same number as the bale from which it was taken; that in this way the samples could be identified with the bales: in other words, if a sample were drawn from bale number 1, the sample would contain a tag number on the bale as “ 1,” and so on up to one hundred or whatever the number of bales might be; that each bale was numbered when shipped to the defendant from the south; that in addition to submitting to the committee these original one hundred samples, there was taken for the use of the committee a sample from each bale, and as it was drawn from the bale a card was put on the sample so redrawn that represented the bale from which it was taken; that this card was part of a tag and the other part bearing the same number was put in the bale from which the sample was drawn; that there were two numbers on each bale, one the shipping number, the other the mill number; that the number put on the redrawn sample was the mill number and was put on by the defendant when the cotton arrived; and that the numbers taken for the samples redrawn were not the numbers that were on the cotton when it was shipped.

The above described method of drawing the samples for use by the arbitration committee and for comparison with the original samples was testified to by one Moran, a witness called by the plaintiffs, who took the samples from the bales. The committee made its examination and submitted its report from a comparison of the original samples with those drawn from the bales by Moran.

In its report the committee found that twenty-two bales were not equal to sample and that seventy-eight bales were equal thereto. As one of the steps in coming to this conclusion the committee subdivided the samples into four classes — A, B, C, and D. It is conceded by the defendant that, under the provisions for arbitration, if more than fifty per cent of the cotton tendered was equal to the samples upon which it was sold, the purchaser was obliged to take the cotton found to be equal to the samples unless it appears that the arbitrators acted wrongfully in the performance of their duties. The defendant contends that it is not bound by the arbitration because the report on its face shows that the committee acted improperly.

It may be presumed that the arbitrators were selected because of their expert knowledge and experience in comparing samples of cotton with that in bales for the purpose of determining whether it was equal to the sample. Whether the method they adopted of dividing the whole shipment into classes and comparing the original samples with those which had been redrawn from the bales after rejection by the defendant was a proper, adequate and reasonably accurate method of determining whether as a whole the cotton was equal to the original samples was for them to determine, and we cannot say as matter of law that it was erroneous. Palmer v. Clark, 106 Mass. 373. Marsch v. Southern New England Railroad, 230 Mass. 483, 493, 494.

The trial judge instructed the jury that if they found that the cotton purchased did not correspond with the samples from which it was sold, then their verdict should be for the defendant; but if they were satisfied that the one hundred samples taken from the bales after the defendant refused to receive the cotton fairly represented the cotton that was delivered, it was immaterial if, after it was received by the arbitration committee, it was divided into lots or classes or given certain designations, because if the cotton corresponded to the sample from which it was purchased, if there were one hundred samples and the one hundred bales corresponded to the one hundred samples, then the sale being by sample, the bulk corresponded to the sample, the purchaser would be obliged to take it.”

The instructions so" given were correct, and as it could not be ruled as matter of law that the committee, in the performance of its duty, under “ New England Revised Terms,” was bound to compare each original sample with the cotton in the bales from which it was taken, the defendant’s requests, except so far as covered by the instructions given, were rightly refused.

The defendant’s eighth request could not properly have been given; the correct rule in assessing damages in a case of this kind is the difference between the contract price and the fair market price at the time and place agreed upon for performance. Barrie v. Quinby, 206 Mass. 259. Edelstone v. Schimmel, 233 Mass. 45.

Exceptions overruled.