Ryder & Brown Co. v. E. Lissberger Co.

• Decision Date: 03 June 1938
• Citation: 15 N.E.2d 441,300 Mass. 438
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: RYDER & BROWN COMPANY v. E. LISSBERGER COMPANY.

300 Mass. 438

15 N.E.2d 441

RYDER & BROWN COMPANY v. E. LISSBERGER COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 3, 1938

March 5, 10, 1936.

Present: RUGG, C.

J., FIELD, DONAHUE LUMMUS, & QUA, JJ.

Sale, Rescission. Tender. Practice, Civil, Question of law or fact. Words "Offer to return."

Letters sent promptly by a buyer to the seller of a carload of mohair shipped to the buyer from a distance, setting forth a statement in substance that the goods shipped were not those ordered, as was discovered by the buyer after examination, a request for instructions as to disposition of the goods, and a demand for a return of the purchase price properly could be found on the evidence to have been an unequivocal and unqualified notification and offer to return, necessary to effect a rescission under G.L. (Ter. Ed.) c. 106, Section 58 (3).

The sufficiency of an offer by the buyer to return goods in rescission of a sale was not affected by his coupling his offer with a demand that the seller thereafter perform the contract of sale and a refusal to accede to a condition, which the seller attempted to impose on the rescission, that the buyer "call the entire transaction off."

The construction of the legal import of correspondence between the parties to an action being for the trial judge, he was not required to instruct the jury that "No inferences can be drawn from the correspondence which are contrary to the express statements contained therein."

CONTRACT. Writ in the Superior Court dated December 21, 1928. At the trial before Dillon, J., the defendant, asked for and the judge refused the following rulings:

"1. Upon all the evidence the plaintiff is not entitled to recover." "34. Where after inspection the plaintiff claimed that the mohair was not, what the contract called for, and so notified the defendant, and the defendant stated `we are willing to take this car back and refund your money provided you will call this entire transaction off', and the plaintiff refused to return or offer to return said car on said conditions, the plaintiff has waived its right, to rescind said sale."

"47. Where after inspection the plaintiff claimed that the mohair was not what the contract called for, and so notified the defendant and demanded the refund of the purchase price, and the defendant offered to refund said purchase price provided the plaintiff would return the goods and call the transaction closed, and the plaintiff in reply thereto insisted not only upon the refund of the purchase price, but also upon the `immediate shipment of the kind of a car of mohair you sold us', the plaintiff cannot recover in this action."

"58. No inferences can be drawn from the correspondence which are contrary to the express statements contained therein.

"59. Nothing contained in the letters expressly or by inference can be construed as an effective rescission of the contract of sale.

"60. Where the statements in the correspondence expressly demand the return of the purchase price of the mohair coupled with the further demand for another car of mohair, no inferences can be drawn from said statements that the plaintiff was making an unequivocal offer to return the mohair."

A motion that a verdict be ordered for the defendant on the first and second counts of the declaration was denied. The jury found for the plaintiff on the first count in the sum of $19,966.78, and for the defendant on the second count. The defendant alleged exceptions.

B. A. Sugarman, for the defendant.

R. B. Owen, (R.

L. Ryder & A.

S. Lawrence with him,) for the plaintiff.

FIELD, J. This is an action of contract growing out of a contract of sale by the defendant to the plaintiff of a car of mohair. The declaration is in five counts -- the second, third, fourth and fifth counts being added at various times by amendment. The first count is to recover the price paid by the plaintiff for a car of mohair. It contains allegations that a car of mohair was delivered to the plaintiff, that "upon inspection it appeared that said car was not in accordance with the contract and was not of the kind and character of mohair therein agreed upon," and that the plaintiff "did not accept delivery of the goods shipped to it, but on the contrary notified the defendant that it would not accept delivery thereof and rescinded its contract of sale and demanded return of the money paid by it thereunder." The second count is for damages for breach of contract in that the car of mohair delivered to the plaintiff "was not in accordance with the contract and was not of the kind and character of mohair therein agreed upon." The defendant made a motion that the court direct a verdict for the defendant and also a motion that it direct a verdict for the defendant on each of the five counts. Verdicts were directed for the defendant on the third, fourth and fifth counts. The jury returned a verdict for the plaintiff on the first count and for the defendant on the second count. The case comes before us on the defendant's exceptions to the denial of its motion for a directed verdict generally and on the first and second counts of the declaration, and to the refusal of the judge to instruct the jury as requested. No exception was taken by the defendant to the charge.

The evidence tended to show these facts: The plaintiff had a place of business in Boston, the defendant a place of business in New York City. On or about September 5, 1928, the defendant entered into an oral contract with the plaintiff whereby the defendant agreed to sell and the plaintiff agreed to purchase one car of Fall Arizona mohair. On the same day the defendant sent to the plaintiff in Boston written confirmation of the agreement purporting to "confirm sale of one (1) Car Fall Arizona Mohair at fifty-six (56c) cents per pound . . . F. O. B. Net Cash, Sight Draft against Bill of Lading." A car of mohair was shipped by A. Cohen & Company from Texas, under a negotiable order bill of lading issued by the carrier railroad corporation. This bill of lading consigned the goods to the "order of A. Cohen and Company," with a notation "notify E. Lissberger & Co." It was indorsed in blank by the shipper -- the consignee. On November 24 the defendant sent an invoice to the plaintiff billing the shipment in the amount of $14,839.83, and on November 26 the defendant drew a draft in said amount on the plaintiff corporation. The draft with bill of lading attached subsequently came into the possession of the National Shawmut Bank of Boston, which immediately notified the plaintiff. On December 1 the plaintiff paid the draft by check to the bank and received the bill of lading. The bank in turn sent the money to the Manufacturers Trust Company of New York for the defendant. The plaintiff delivered the bill of lading to its trucking company. On or about December 4 the trucking company delivered the bill of lading to the railroad corporation, received the mohair and transported it to the plaintiff's warehouse. Shortly after the delivery of the mohair to the plaintiff's warehouse, an inspection thereof was made by the plaintiff and it was found not to be substantially of the class and character called for by the contract. There was evidence that the "mohair delivered was New Mexico mohair which is entirely different from and not merchantable as Arizona mohair," and that "New Mexico mohair cannot be used for the same purposes as Arizona mohair."

Between December 4, 1928, and the commencement of this action on December 21, 1928, there was an exchange of letters between the plaintiff and the defendant, material portions of which are set out in a footnote. ^[*] On December 14, 1928, the plaintiff drew a demand draft on the defendant for the amount of the price paid, but the draft has not been paid. There was evidence that the plaintiff kept the mohair that was delivered to it segregated so that the defendant could have it, but never received instructions where to ship it. After the action was commenced there was further correspondence relating to the adjustment of the matter.

First. There was no error in the denial of the defendant's motion for a directed verdict generally or of its motion for a directed verdict on the first count. Under the first count of the declaration the plaintiff seeks, on the basis of rescission of the contract of sale (a term which is broad enough to include either a "contract to sell" or a "sale" as defined in the sales act, G.L. [Ter. Ed.] c. 106, Section 3 (1), (2), Williston on Sales [2d ed.] Section 2, see Low v. Pew, 108 Mass. 347 , 349), to recover the price paid by it -- not to recover damages for breach of warranty or other breach of the contract. The evidence warranted a finding for the plaintiff on this ground and, consequently, on the declaration as a whole.

1. There is no contention that the confirmatory letter of September 5, 1928 did not state correctly the terms of the contract or that the case is not governed by the law of this Commonwealth. There was, therefore, a contract of sale, executory on both sides, contemplating performance by shipment, under a bill of lading, of a car of mohair corresponding with the description in the contract, and payment, concurrently with receipt of the bill of lading, of the accompanying sight draft. Compare G.L. (Ter. Ed.) c. 108, Section 38. We assume, for the purposes of this case, in accordance with the statements of the judge in his charge -- without discussing the principles of law involved -- that, "as matter of law, title" to the car of mohair shipped "passed to the plaintiff when it paid the sight draft and obtained possession of the bill of lading," and that "if the title passes the right to reject is gone. The right to rescind alone remains" - apart, of...