Automatic Time-table Adv. Co. v. Automatic Time-table Co.
| Decision Date | 03 March 1911 |
| Parties | AUTOMATIC TIME-TABLE ADVERTISING CO. v. AUTOMATIC TIME-TABLE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
This was an action of contract for damages for defendant's failure to comply with its terms. The contract recited that defendant sold plaintiff the following goods:
12 automatic time-table machines complete, together with all printed matter, time-tables, electro-plates, printed goods and advertising matter, and advertising contracts, relating to said machines which were sold, assigned and transferred to the said Automatic Time-Table Company by the said Automatic Time-Table Advertising Company under agreement, dated July 13, 1909. Said machines are described and located as follows:
1 machine located at Merrimack Square, in Lowell, Mass.
1 machine located in Lawrence, Mass.
1 machine located in Haverhill, Mass.
1 machine located in Salem, Mass.
1 machine located in Lynn, Mass.
1 machine located in Chelsea, Mass.
6 machines now standing in the shop of the Automatic Time-Table Company, 58 Middle street, Lowell, Massachusetts, and numbered on door on battery side of case respectively as follows: 8, 9, 10, 11, 12 and 13.
Burke & Corbett and John C. Leggat, for plaintiff.
Nathan D. Pratt and John J. Devine, for defendant.
The contract of July 16th was a contract for the sale of 12 specific machines and not a contract for the sale of 12 machines of a particular description. By its terms it purports to be a present sale, but it was a sale of '12 automatic time-table machines complete,' and there was evidence that no one of the '6 machines now standing in the shop of the Automatic Time-Table Company' was complete.
The bill of exceptions is somewhat obscure on this point. But as we interpret it there was evidence that apart from the Gordon batteries no one of these 6 machines was complete. We speak of the parts of the machine other than the Gordon batteries because it seems to have been the undisputed fact that as matter of practice these batteries were not put into the machines until they were set up for use on the premises of the purchase or licensee, and setting up these machines on the premises of the plaintiff was not part of the obligation of the vendor under the contract here in question. It appeared that that was to be paid for by the vendee in addition to the purchase price named in the written contract.
The contract does not say that the '12 automatic time-table machines' were complete, but it says that the defendant sells to the plaintiff '12 automatic time-table machines complete.' Evidence that the 6 here in question were in fact incomplete was admissible as one of the circumstances under which the contract was made and so one of the circumstances in the light of which it was to be construed.
Since something had to be done to the machines to put them in a deliverable state and a different intention did not appear the property in the 6 machines here in question did not pass on the execution of the contract. The transaction was governed by the sales act (St. 1908, c. 237) and it is there so provided in section 19, rule 2. The rule was the same at common law. Wesoloski v. Wysoski, 186 Mass. 495, 71 N.E. 982, and cases cited.
The defendant contends that the cases of Glover v. Austin, 6 Pick. 209, Glover v. Hunnewell, 6 Pick. 222 Summer v. Hamlet, 12 Pick. 76, Thorndike v. Bath, 114 Mass. 116, 19 Am. Rep. 318, Mauger v. Crosby, 117 Mass. 330, and Whittle v. Phelps, 181 Mass. 317, 63 N.E. 907, are decisions to the contrary. Those are cases where it appeared that it was the intention of the parties to sell the chattel in its unfinished condition with an agreement by the seller to complete it; or, in the language of St. 1908, c. 237, § 19, those were cases where a different intention did appear.
The contract of July 16th, therefore, was not a contract of present sale of 6 unfinished machines with an agreement on the part of the defendant to complete them, but it was a contract to complete the 6 unfinished machines which on completion were to become the property of the plaintiff.
The defendant has contended that the delivery of the 6 machines not in dispute passed the property in the 6 here in question and that Damon v. Osborn, 1 Pick. 476, 481, 11 Am. Dec. 229, Lee v. Kilburn, 3 Gray, 596, 598, and Rice v. Codman, 1 Allen, 377, are decisions to that effect. Those cases are not decisions to that effect, and the case of Foster v. Ropes, 111 Mass. 10, is a decision that that contention is wrong at common law. The rule of the common law is the rule under the sales act. The cases relied upon by the defendant do not help him. Damon v. Osborn was not a sale of specific goods....
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