130 Mass. 581 (Mass. 1881), Rogers v. Union Stone Co.

Citation130 Mass. 581
Opinion JudgeEndicott, J.
Party NameThomas M. Rogers & another v. Union Stone Company
AttorneyF. T. Blackmer & F. W. Griffin, for the defendant. F. P. Goulding, for the plaintiffs. Exceptions sustained.
Judge PanelEndicott, J. Field, J., absent.
Case DateApril 08, 1881
CourtSupreme Judicial Court of Massachusetts

Page 581

130 Mass. 581 (Mass. 1881)

Thomas M. Rogers & another

v.

Union Stone Company

Supreme Court of Massachusetts

April 8, 1881

Argued May 10, 1879; October 1, 1878; October 3, 1879

Worcester. Contract, in two counts. The first count alleged that the plaintiffs were the assignees in bankruptcy of a corporation named the Wood and Light Machine Company; that, before the bankruptcy, Buchanan, Ware and Company made an order upon the defendant, a copy of which was annexed, directing it to deliver certain goods, therein specified, to the Wood and Light Machine Company; that the defendant duly accepted said order, and thereby became liable to deliver to said company said goods, to the value of two thousand dollars; and that the defendant, though often requested, had failed to deliver said goods to said company, or to the plaintiffs, as their assignees in bankruptcy.

The second count, which was for the same cause of action, alleged that the defendant made an agreement in writing, a copy of which was annexed, agreeing to deliver to the Wood and Light Machine Company certain goods, therein specified, to the value of two thousand dollars; and that the defendant, though often requested, had refused to deliver said goods to said company, or to the plaintiffs, as its assignees in bankruptcy.

The copy annexed to both counts was as follows: "Worcester, January 8, 1876. Union Stone Co., Boston, Mass. Please deliver Wood and Light Machine Company, or order, two thousand dollars in emery wheels and emery goods, hones, slips, &c. as per our order of October 20, 1875. Buchanan, Ware & Co."

Across the face of this order was written: "Two thousand dollars emery goods at our list prices. Accepted, January 8, 1876. J. F. Wood, Treas."

Answer: 1. A general denial. 2. That the order or agreement was never presented to, or demand made upon, the defendant, and that payment was never refused. 3. That the order and agreement were given as collateral security for the payment of certain notes which had been fully paid and satisfied; and that said original claims were never possessed by the plaintiffs.

Trial in the Superior Court, without a jury, before Aldrich, J., who found the facts to be as follows:

Buchanan, Ware and Company signed the order declared on, and the acceptance was signed by the treasurer of the defendant corporation. On January 10, 1876, the order so accepted was delivered to the Wood and Light Machine Company, to be held by it as collateral security for the payment of five promissory notes by Buchanan, Ware and Company, and payable to their order. On January 12, 1876, the Wood and Light Machine Company filed a voluntary petition in bankruptcy. The first note was paid by Buchanan, Ware and Company, but the others are unpaid, though due. The plaintiffs made a demand on the defendant for the goods mentioned in the order, and the defendant refused to deliver the goods.

The defendant asked the judge to rule that the plaintiffs could not recover. The judge refused so to rule; and ordered judgment for the plaintiffs, for the amount of the four notes unpaid. The defendant alleged exceptions.

Exceptions sustained.

F. T. Blackmer & F. W. Griffin, for the defendant.

F. P. Goulding, for the plaintiffs.

Endicott, J. Field, J., absent.

OPINION

Page 582

Endicott, J.

It appears that Buchanan, Ware and Company had a contract with the defendant for the delivery of certain goods, and on January 8, 1876, they signed an order directed to the defendant to deliver to the Wood and Light Machine Company two thousand dollars in the said goods. The order was accepted by the defendant's treasurer on the same day, and, on January 10 following, was given to the company to hold as

Page 583

collateral security for the payment of five promissory notes of that date, signed by Buchanan, Ware and Company.

This order was for the delivery of two thousand dollars to be paid in merchandise, and is not negotiable. Gushee v. Eddy, 11 Gray 502. It was said by Mr. Justice Metcalf in Sears v. Lawrence, 15 Gray 267, "The law and incidents of a bill of exchange do not attach to such an instrument."

By the acceptance merely of this order the defendant entered into no contract with the Wood and Light Machine Company. The company was no party to the contract, and if the defendant made any binding contract by accepting the order, it was with Buchanan, Ware and Company.

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