Barstow v. Gray

• Decision Date: 01 May 1825
• Citation: 3 Me. 409
• Parties: BARSTOW v. GRAY
• Court: Maine Supreme Court

3 Me. 409

BARSTOW v. GRAY

Supreme Judicial Court of Maine, Kennebec

May, 1825

[Syllabus Material] [Syllabus Material]

IN this action, which was assumpsit, brought to recover damages for the breach of a contract respecting the sale and delivery of a quantity of wheat, by the plaintiff, who resided in Hallowell, to the defendant, at the city mills in Boston, the evidence of the contract was contained in certain letters which passed between the parties.

It appeared that after some previous intercourse between them the tenor of which was not in evidence, the plaintiff wrote to the defendant, May 2, 1822, in these terms:--

" Sir, I have sent you a sample, being six bushels, of wheat from three lots, and I suppose it may be a fair average; --shall think there is very little inferior or superior to the extremes. In order to be able to buy the wheat, should you want, I have been under the necessity of sending it to Messrs. Rice & Thaxter, instead of doing it directly to yourself, who will apprise you when it arrives. Should you conclude to purchase, the sooner it is done, the better. I think from 3000 to 8000 bushels might be had, at said price, if no opening appears before I hear from you."

To this the defendant, on the 24th of May, replied thus; --" I have received your letter of May 2d, with three sacks of wheat, which proves good; weight 59, 60, 61 lbs. per bushel. I should have answered your letter sooner, but did not get a report of the quality till yesterday. The wheat will be worth one hundred and thirty cents per bushel, delivered at the mills called the city-mills in this town."

The plaintiff answered this letter on the 31st of May as follows; --" Yours relative to the wheat not coming to hand so soon as was expected, I had written to Alexandria before I received it, and expect an answer very soon. Should the offer be a better one than yours, I should like at the same price to give you the preference, and will advise you; --otherwise shall ship it to you with all possible despatch. Postscript. Contracts for about 5000 bushels wheat have been made this week; it may not come in."

The plaintiff, at the trial before Weston J. called one Ebenezer White as a witness; to whose competency an objection being made on the ground of interest, he stated, upon the voir dire, that in the spring of 1822, after the plaintiff had purchased at Hallowell a considerable quantity of wheat, with a view to send it to the defendant at Boston, the plaintiff proposed to the witness that he should furnish wheat at Hallowell, to be sent to the defendant, saying that he had made a contract for that purpose at 130 cents the bushel; --that accordingly the witness furnished part of a parcel of 2700 bushels, for which he was to receive of the plaintiff the same price the plaintiff might obtain of the defendant; --that this parcel, and 800 bushels more, in which the witness had no interest, were delivered at the city mills in Boston and paid for by the defendant, in July 1822, at the price of 130 cents per bushel; out of which the plaintiff paid the witness for his part of the 2700 bushels; --that the wheat now in controversy was purchased by the plaintiff prior to that time; and that the witness was not a party to the contract with the defendant, and had no interest in the suit. Being thereupon admitted to testify in chief, he stated that about the time of the arrival of the 3500 bushels in Boston, in July 1822, he informed the defendant that the plaintiff had been purchasing wheat for him, and wished to know if he was ready to receive it. To his inquiry respecting the quantity of wheat purchased for him by the plaintiff, the witness answered that he had bought between four and five thousand bushels, and expected the defendant to receive it at the price before stated. The defendant replied that he was sorry, but said he would, or supposed he must take it, though his mills were very full. The witness then informed the defendant that one shipment from the plaintiff had arrived, and that another vessel was then on the passage to Boston; but he did not intimate to the defendant, nor did the witness know, that these two shipments did not contain the whole quantity contracted for.

It further appeared that on the arrival at Boston of the vessel which carried the wheat now in controversy, about the 4th of August 1822, the master informed the defendant, and his agent at the mills, that he had brought from the plaintiff the residue of the wheat, which was on board his vessel; and that he would bring it to the mills; but the defendant told him it was of no use, and that he should not receive it. The master then landed and stored the wheat at another place in the city, where he again offered it to the defendant, who still refused to receive it. The wheat being then sold for the most it would bring, the plaintiff brought this action to recover the difference between the price sold for, and the price agreed.

The counsel for the defendant objected that the wheat ought to have been tendered at the city mills; and that White, the witness, should have been joined with the plaintiff in the action. But these objections the Judge overruled; and the jury returned a verdict for the plaintiff, which was taken subject to the opinion of the Court upon the admissibility of the witness, and upon the points raised at the trial.

Judgment on the verdict.

Allen, for the defendant, contended that the letters did not furnish any evidence of a contract, and were nothing more than the ordinary correspondence of two merchants, concerning the state of the market, and the prospect of profit upon a shipment of the article in question. The plaintiff himself did not consider the defendant bound to receive the wheat at all events, nor hold himself obliged to ship it to Boston, as is evident from his last letter, in which he intimates his intention not to send it to that place, if he could do better at Alexandria. It is true he chooses in that letter to speak of the defendant's " offer; " but this does not fix the character of the communication; and if it had been an offer to purchase, the plaintiff was not at liberty to speculate upon it till he could receive advices from distant ports. To bind the defendant, it should have been instantly accepted.

But if the evidence of the contract is contained in the letters, then the admission of parol testimony to explain it was irregular, there being no latent ambiguity.

And if parol evidence could be received, yet White was incompetent to give it, because of his interest in the suit. He was to receive such price as the plaintiff should receive of the defendant; which it was plainly his interest to increase. But if his testimony was rightly admitted, it disproves the declaration, and destroys the plaintiff's right to recover, by shewing a partner not joined in the suit. It is the case of two joint owners of a chattel sold, and to be paid for in two installments; where, though one owner receives the first payment in full for his share, and even releases to the other, yet both must join in an action for the residue, because both were interested in the subject of the contract.

Neither was the contract fulfilled on the part of the plaintiff. He was bound to deliver the wheat at the city mills; which the defendant did not disable nor prevent him from doing. The dissuasive language used by the defendant to the master of the vessel, could operate no farther than to exonerate the plaintiff from any action at the suit of the defendant for not delivering the wheat; but could not vest in him a right of action for the price; to entitle himself to which, he should first do all he had stipulated previously to perform. Morton v. Lamb 7 D. & E. 123. 5 Com. Dig. 262. 2 Com. Dig. 452. Doug. 684. Phillips v. Fielding 2 H. Bl. 123.

And the contract was void for want of mutuality, there being no engagement on the part of the plaintiff to deliver any quantity of wheat, which the defendant could enforce at law. He was perfectly at liberty to sell it at the best bargain he could make, having only intimated his intention to send it to the defendant if he could do no better.

Sprague for the plaintiff. The letters contain in themselves sufficient evidence of an agreement between the parties. If there is any ambiguity, it is of the defendant's own creation; and the rule is that the party using language of doubtful meaning is bound by the interpretation which he knows the other party has given it. Here the defendant knew the plaintiff's interpretation of the contract, to which he made no objection or reply. The amount of his undertaking was, that if the plaintiff would send the goods, he would receive them at the agreed price; and the plaintiff did send them. He might have retracted his offer before any act done by the plaintiff in execution of the contract; as a...