Steamship Bulgarian Co. v. Merchants' Despatch Transportation Co., 135 Mass. 421

135 Mass. 421 | Mass. | 1883

Colburn, J.

There was no substantial controversy in this case that the defendant, a corporation engaged in transporting merchandise by railway from different points in the West to Boston, by its agent Woods, on January 29, 1881, made a contract with the owners of the steamship Illyrian, one of the Leyland line of steamships, running between Boston and Liverpool, by Thayer and Lincoln, agents of the steamships of that line, for the shipment of 25,000 bushels of corn from Boston to Liverpool, by said steamship, which was to sail on February 19,1881; that, the corn not being ready for said steamship, it was agreed between Woods, as agent for the defendant, and Thayer and Lincoln, as agents for the steamships, that the contract for the corn should be transferred to the Bulgarian, another of the steamships of said line, which was to sail in March, 1881, freight which was designed for the Bulgarian being shipped by the Illyrian in place of said corn, and the corn shipped by the Bui garian in place of said freight.

The defendant having failed to furnish the corn for the Bulgarian, this action was brought to recover damages for such breach of contract. There being no controversy that the terms of the contract with the Bulgarian were substantially the same as of that with • the Illyrian, except as to the time of shipment, the memorandum of “ freight engagement ” with the Illyrian was used in evidence at the trial to show the terms of the contract, and the capacity in which the defendant acted, there being no dispute that it acted in the same capacity in making both contracts.

The contention of the plaintiff was, that the contract was made with the defendant; and the contention of the defendant was, that the contract was made by the plaintiff with one Rae, through the defendant, acting as middleman, or as his agent. There was no claim that Woods was Rae’s agent.

The exception relied upon by the defendant is to the ruling of the judge, as matter of law, that the paper headed “ Contract No. 580 ” is a memorandum of an undertaking by the defendant for itself, and not as the agent of G. B. Rae.

Whether this paper is treated as a contract, or only as a memorandum of a contract, is immaterial, in the legal construction of its terms. The question at issue is the intention of the parties, to be gathered from the memorandum itself and the attending circumstances. Green v. Kopke, 18 C. B. 549. Goodenough v. Thayer, 132 Mass. 152, and cases cited.

We are of opinion that, by the terms of the memorandum, the defendant was the contracting party. The defendant does not purport to act as agent .for Rae, and though Rae is mentioned as the owner of the corn, or the person for whose account the contract was made, he is not mentioned in such manner as to show that the defendant did not intend to be the contracting party. The fair inference from the language of the memorandum, considered in the light of the undisputed attending circumstances, is that the defendant had made an agreement to transport corn from Toledo to Liverpool, and, in carrying out this agreement, must arrange with some line of steamships for the ocean transportation, and that the memorandum was made for that purpose.

If it was clear that the defendant was agent for Rae, it might contract in such form as to bind itself, though the principal was disclosed. Jones v. Littledale, 6 A. & E. 486. Story on Agency, § 269.

The contracts with the two steamships were different, though the terms of both were substantially alike. The owners were different, though they had the same agents. The contract with the Bulgarian was oral. The judge rightly refused to rule as requested, if the defendant’s request is to be so construed, that, on all the evidence, the contract for the delivery of the grain was the contract of Rae, and not that of the defendant. There were facts of some significance in dispute, one being the time when the words “ February shipment guaranteed ” were written on the memorandum. But we do not understand that the defendant relies upon the exception to this refusal.

In the opinion of a majority of the court, the entry must be

Exceptions overruled.