135 Mass. 421 | Mass. | 1883
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
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.
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.