Barrie v. Quimby
| Decision Date | 27 June 1910 |
| Citation | 92 N.E. 451,206 Mass. 259 |
| Parties | BARRIE et al. v. QUIMBY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Rufus B. Sprague and Thos. F. Brennan, for plaintiffs.
Arthur T. Johnson, for defendants.
We have carefully read the instructions, and are unable to adopt the defendants' interpretation, that the judge expressed an opinion upon the credibility of the witnesses. Whitney v Wellesley & Boston St. Ry., 197 Mass. 495, 503, 84 N.E 95, and cases cited. The remaining exceptions, so far as urged in argument, have been confined to the admission and exclusion of evidence, and to the refusal of the rulings requested, as to the nature and extent of the defendants' liability. It being plain there was evidence for the jury that the signature of the firm bound the copartnership, the defendants offered to prove in avoidance that the contract never became binding because the plaintiffs refused performance of the second condition averred in the amended answer. Feigenspan v. McDonnell, 201 Mass. 341, 346 87 N.E. 624. If this defense were available, the delivery of the contract was conditional. A party, for instance undoubtedly may prove by parol that he executed an agreement upon the understanding that until signed by others similarly interested it was not to take effect, or that his promissory note in payment of the premium was given upon condition that he should receive a policy of life insurance, which never has been delivered. The performance by the promisee of a precedent condition being collateral to the promise, it furnishes, when not performed, a good defense as between the parties. Elastic Tip Co. v. Graham, 185 Mass. 597, 71 N.E. 117; Faunce v. State Assurance Co., 101 Mass. 279; Watkins v. Bowers, 119 Mass. 383; Hill v. Hall, 191 Mass. 253, 265, 77 N.E. 831. But it is apparent that the conversation which the defendants wished to elicit in support of this defense preceded the signatures of the parties, and they evidently sought to enlarge an unambiguous written offer, which upon acceptance by the plaintiffs, indorsed on the instrument, constituted the contract, by incorporating a cotemporaneous oral agreement, transforming an absolute into a conditional promise. The evidence, being inadmissible, as it tended to control or vary the terms of the contract, was rightly excluded. Drew v. Wiswall, 183 Mass. 554, 67 N.E. 666; De Friest v. Bradley, 192 Mass. 346, 78 N.E. 467; McCusker v. Geiger, 195 Mass. 46, 80 N.E. 648.
By an independent concurrent agreement, the defendants contracted for 75 sets of an edition of the same author to be printed on Japan paper, to be delivered beginning on a certain date at the rate of 8 sets monthly as issued, while by the contract in suit they agreed to take 200 sets of a cheaper edition, 'deliverable as issued 10 sets a month,' the terms of payment and of discount to be the same as provided for the 'Japan edition.' The contract, which was for 4,000 volumes, being silent as to when delivery should begin, the plaintiffs were required to tender performance within a reasonable time. An interval of two years and six months elapsed before the first 10 sets, or 200 volumes, were tendered. During this period the defendant partnership became merged in a corporation, with a substantial change in the character of the business; but whether it assumed the debts, and other obligations of the firm does not appear. If unexplained, although no demand for performance had been made by the buyers, the delay, in view of these circumstances, was so unreasonable as to constitute a breach by the plaintiffs, which would justify a disaffirmance of the contract by the defendants. Spoor v. Spooner, 12 Metc. 281, 285; Williams v. Powell, 101 Mass. 467, 3 Am. Rep. 396; Campbell v. Whoriskey, 170 Mass. 63, 67, 48 N.E. 1070.
To meet this defense it was competent for the plaintiffs to prove a usage in the trade that, where two editions of an author were to be issued by the same publisher, of which the price of one was to be more expensive than the other, an interval between the publications is allowed, in order that the more costly edition may be disposed of before the cheaper edition is put upon the market. It is settled, that a general trade usage may be introduced to supply unexpressed terms in a contract. The time of delivery, or of credit, or of payment, where the contract is silent, may be shown by the universal course of dealing of the trade. Bradford v. Drew, 5 Metc. 188, 191; Kriete v. Myer, 61 Md. 558; Scudder v. Bradbury, 106 Mass. 422; Salmon Falls Mfg. Co. v. Goddard, 14 How. 447, 14 L.Ed. 493. Or, in a sale on credit, that the delivery of the goods was to be concurrent with payment. Field v. Lellan, 6 H. & M. 617. See Dickinson v. Gay, 7 Allen, 29, 35, 83 Am. Dec. 656. It may be established by the testimony of one witness, but whether his general knowledge is such as to qualify him to give testimony is a preliminary inquiry to be decided by the trial judge. The witness testifies to the existence of a fact from actual knowledge, acquired through observation and experience in the business; but he cannot give his opinion. Hamilton v. Nickerson, 13 Allen, 351; Jones v. Hoey, 128 Mass. 585; Haskins v. Warren, 115 Mass. 514, 515; A. J. Tower Co. v. Southern Pacific Co., 184 Mass. 472, 475, 69 N.E. 348; Robinson v. U. S., 13 Wall. 363, 20 L.Ed. 653. If the usage is general as applied to a particular transaction, especially where the defendant is a member of the trade, the presumption is that both parties knew of it, and contracted accordingly. The question is one of fact for the jury under suitable instructions. A. J. Tower Co. v. Southern Pacific Co., 184 Mass. 472, 475, 69 N.E. 348, and cases cited; Clark v. Baker, 11 Metc. 186, 45 Am. Dec. 199; Haskins v. Warren, 115 Mass. 514; First National Bank v. Burkhardt, 100 U.S. 686, 25 L.Ed. 766. It is also as well settled that, to be admissible, the usage not only must be universal, but has become notorious by the long and uniform practice of those engaged in the trade at the place where the contract is made. Scudder v. Bradbury, 106 Mass. 422. The evidence offered by the plaintiffs falls short of these essential requirements, and should have been excluded. Winsor v. Dillaway, 4 Metc. 221, 223; Haskins v. Warren, 115 Mass. 514; Flatt v. Osborne, 33 Minn. 98, 22 N.W. 440. Nor were the instructions as to the effect of the usage if proved, and to which the defendants excepted, correct. It did not follow, where the length of the intervening time does not appear to have been fixed by the usage, that the interval between the editions exonerated the plaintiffs. It was still a question of fact whether performance had not been unjustifiably delayed.
But if the exceptions must be sustained because of these errors, the plaintiffs at the second trial may be able to furnish satisfactory evidence of the usage, and we deem it advisable to consider the other important questions which again must arise. We have found some embarrassment in their consideration, from the meager and obscure statements in the exceptions. The plaintiffs apparently printed the entire edition, of which the sets contracted for by the defendants formed only a part, before they began delivery. But the correspondence shows that the corporation, which the parties appear to have treated for all purposes connected with the litigation, as if it were the former partnership, refused to receive the first and second installments, or to comply with the terms of payment, or to accept drafts drawn by the plaintiffs for the installment price, and reshipped the consignments to the sellers. The plaintiffs, treating the notice as inoperative, continued for some time to tender succeeding monthly installments, which the defendants declining to receive, suit was brought when they held ready for delivery, including these sets, the whole number of volumes called for by the contract. The amended declaration, or second count, upon which the plaintiffs obtained a verdict, is on an executed contract to recover the entire contract price, and no question of warranty or of the statute of frauds being involved, or a conditional agreement proved, they assert that the sale had been completed, and the title passed. Carter v. Willard, 19 Pick. 1; Goddard v. Binney, 115 Mass. 450, 15 Am. Rep. 112; Putnam v. Glidden, 159 Mass. 47, 34 N.E. 81, 33 Am. St. Rep. 394; White v. Solomon, 164 Mass. 516, 42 N.E. 104, 30 L. R. A. 537; Mitchell v. Le Clair, 165 Mass. 308, 43 N.E. 117. If the defendants were to have taken the sets as manufactured at the plaintiffs' place of business, or the sets were to have been delivered to a carrier for transportation, an appropriation by setting them apart as the buyer's goods, or delivering them to the carrier, would have passed the title, and a refusal to give the notes would have permitted the plaintiffs to sue for the price of each installment, or when the time of full performance had expired to sue for the whole amount. Parsons v. Dickinson, 11 Pick. 352; Putnam v. Tillotson, 13 Metc. 517, 520; Philbrook v. Eaton, 134 Mass. 398; Morse v. Sherman, 106 Mass. 430; Weld v. Came, 98 Mass. 152; Mitchell v. Le Clair, 165 Mass. 308, 40 N.E. 117; Loring v. Gurney, 5 Pick. 15.
It is evident, however, from the undisputed testimony, that although not specified in the contract, which was made here the parties mutually understood delivery was to be at the defendants' place of business, where the sale would be completed. Taylor v. Cole, 111 Mass. 363; Suit v. Woodhall, 113 Mass. 391, 393, 394; American Malting Co. v. Souther Brewing Co., 194 Mass. 89, 80 N.E. 526. The contract, which contemplated a present sale of chattels to be manufactured in the future, was purely an executory one until...
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