316 Mass. 598 | Mass. | 1944
The plaintiff, as undisclosed principal, brings this action of contract for goods sold and delivered, namely, certain sheepskins called shearlings. The defendant denies that there was a sale, but alleges that the arrangement was one whereby the defendant was to tan and sell the sheepskins to a customer previously found and out of the proceeds was to make payments to the plaintiff. The jury returned a verdict for the defendant.
The plaintiff’s exceptions to the admission of evidence and to the denial of requests for rulings raise the question whether certain correspondence between one Freedman, the plaintiff’s agent, and the defendant constituted a complete, unambiguous contract of sale which could not be added to or explained by parol evidence.
If the defendant was not precluded from showing by oral testimony that the agreement was not for a sale, there was ample evidence from which the jury could find that the understanding was that the skins were to be tanned at the defendant’s plant at Ayer under the direction of one Hoffner, a friend of Freedman, and then were to be shipped to the Nashua Slipper Company at Lowell, to which they had already been sold by Hoffner; that the Nashua Slipper Company was to pay the entire purchase price to the defendant, which was to forward to Freedman seventy-five cents for each large, and forty-five cents for each small, skin, pay ten per cent to Hoffner for his services, and retain the balance for the use of its tannery and equipment; that a promissory note from the defendant to Freedman intended by way of security was never given because some skins, after being processed, were sent to the Nashua Slipper Company, which returned them without payment; that Hoffner disappeared, and the defendant told Freedman to remove the skins; and that Freedman took a few skins as samples in an unsuccessful effort to make another sale.
Both Freedman and Burns, the treasurer of the defendant, testified that Hoffner informed Burns at the outset that Hoffner had already sold the skins to the Nashua Slipper Company, and, according to Burns, exhibited a “written document verifying the sale.” The correspondence upon
The engagements undertaken by the parties are obviously ambiguous in view of the earlier sale to the Nashua Slipper Company, the exact terms of which do not appear. Uncertainty also exists in other respects. Freedman’s letter of August 18 referred to “your purchasing” “pursuant to your letters of July 27” and August 8 and the telegram of August 11, the first of which was possibly inconsistent with the other two, and certainly is inconsistent with the plaintiff’s contention. Freedman’s letter of August 24 enclosed “bill . . . subject to price and terms in your correspondence to me.” The price appeared only in the originally unacceptable letter of July 27. The bill or invoice of August 24 was in “confirmation of your letters of July 27th and August 8th, also telegram to me of August 11th” and Freed
The correspondence was not “a written contract intended by the parties as a statement of their complete agreement.” Kesslen Shoe Co. Inc. v. Philadelphia Fire & Marine Ins. Co. 295 Mass. 123, 129. See Taylor v. Haverhill, ante, 380, 382. Oral evidence was, accordingly, admissible to show the remainder of the contract. Glackin v. Bennett, 226 Mass. 316, 319. Montuori v. Bailen, 290 Mass. 72, 74, and cases cited. Evidence was also admissible to explain the ambiguous undertaldng of the parties in so far as it was contained in the letters and telegram and to apply it to the subject matter. Kennedy Bros. Inc. v. Bird, 287 Mass. 477, 483. Rizzo v. Cunningham, 303 Mass. 16, 21. Coleman Bros. Corp. v. Commonwealth, 307 Mass. 205, 209. Atwood v. Boston, 310 Mass. 70, 74, 75. Williston on Contracts (Rev. ed. ) § 616.
The admission by Burns in his testimony that the correspondence constituted the entire contract does not help the
The testimony of Burns, and of another witness called by the defendant, accordingly was rightly admitted, and the judge correctly denied the requests presented by the plaintiff.
The plaintiff’s exception filed October 11, 1943, to the further instructions given October 7 in the absence of counsel after the jury had been sent out cannot be considered. Rule 72 of the ¡Superior Court (1932).
Exceptions overruled.