251 Mass. 251 | Mass. | 1925
This is an action of contract to recover damages for breach of contract in refusing to take and pay for sugar. The parties entered into a contract in writing whereby the plaintiff sold and the defendant bought about eighty tons of “Brazilian Washed Sugar,” to be shipped from Brazil. The defendant refused to accept the sugar tendered by the plaintiff in performance of the contract. The case was referred to an auditor “to hear the parties and
Motion to recommit the report is a proper method to raise questions as to the correctness of rulings concerning the admission or exclusion of evidence where the auditor’s findings of fact are final. Tripp v. Macomber, 187 Mass. 109. Pettey v. Benoit, 193 Mass. 233. In all other respects such a motion is addressed to sound judicial discretion. Randall v. Peerless Motor Car Co. 212 Mass. 352, 370, 372.
The auditor found that the defendant was justified in rejecting the sugar on two separate and distinct grounds, (1) that the plaintiff tendered an amount of sugar in excess of the quantity ordered, and (2) that the quality of the sugar offered for delivery was not in conformity with the contract. In our view of the case it is necessary to consider only the questions of law touching the second ground.
The finding of the auditor was that the testimony did not convince him that Brazilian washed sugar is a descriptive term sufficient without more to identify the article sold. The recitals of evidence in the report adequately show such diversity of testimony as to warrant that conclusion and to support the further finding that “Brazilian washed sugar is not such an article as would be known or recognized by that description merely, so as to enable one to determine what would be a proper fulfilment of the contract without further evidence.” It thus appears that there was an ambiguity about the application of the words written in the contract to its subject matter. The governing rule of law on such facts is that, for the purpose of removing or explaining an uncertainty or ambiguity of that nature, parol testimony is admissible and has a legitimate function. If previous negotiations make manifest the sense in which the terms of the contract are used, resort may be had to such negotiations as affording the best definition of the actual intention of the parties. The subject matter of the contract may be identified by proof of whatever was before the parties while they were bargaining. If the sale were by sample,
The auditor appears to have followed this rule both in reaching his main conclusion and in the evidence which he received. The evidence as to a sample used by the broker of the plaintiff and as to his representations concerning it at the time of making the contract was rightly admitted and dealt with correctly.
There is nothing to indicate that the auditor in reaching his conclusions did not give appropriate force and significance to every word used in the contract.
There was no error in admission of testimony offered by the defendant to the effect that the sugar tendered was unfit for the wholesale grocery business. The finding was made that the name used in the contract to describe the subject of the contract was ambiguous. If the sale be governed by the law of Massachusetts, then G. L. c. 106, §17 (2) applies, to the effect that there was an implied warranty that the sugar should be of merchantable quality. If the sale be governed by the law of New York, then (there not appearing to have been any evidence as to the statutes of New York), the common law of that State controls, which is presumed to be the same as that of this Commonwealth. It is implied in every contract of sale such as that here disclosed that the goods sold shall be merchantable under the, name by which they are described. If a manufacturer or dealer sells goods, which he manufactures or deals in, for a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the seller, that is an implied warranty that the goods are reasonably fit for the purpose to which they are to be applied. Hight v. Bacon, 126 Mass. 10, 12. Leavitt v. Fiberloid Co. 196 Mass. 440, 451, 452. Inter-State Grocer Co. v. George William Bentley Co. 214 Mass.
No error is disclosed in the exclusion of the office copy of a letter from the plaintiff to its broker. There was nothing to show that the letter was ever mailed in ordinary course. There was nothing to raise a presumption that it was received by the broker. Prudential Trust Co. v. Hayes, 247 Mass. 311. Moreover, the broker was called as a witness and he was not interrogated concerning the letter.
The finding that the goods tendered did not conform to the requirements of the contract is not tainted with any reversible error. It is decisive of the case. It becomes unnecessary to examine the exceptions touching the other ground on which the auditor based his findings.
Appeal dismissed.
Exceptions overruled.
