Beit Bros. v. Irving Tanning Co.
| Decision Date | 29 February 1944 |
| Citation | 53 N.E.2d 702,315 Mass. 561 |
| Parties | BEIT BROS., INCORPORATED, v. IRVING TANNING COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 26, 1944.
Present: FIELD, C.
J., LUMMUS, DOLAN RONAN, & WILKINS, JJ.
Sale, Contract of sale. Contract, What constitutes. Agency, Scope of authority or employment. Practice, Civil, Ordering verdict, Variance.
Although the evidence at the trial of an action did not support a cause of action for goods sold and delivered set out in the declaration, an exception by the defendant to the denial of a motion for a directed verdict, not based specifically on the pleadings, was not sustained since the evidence warranted a verdict for the plaintiff for breach of the contract of sale by the defendant's failure to take the goods and pay for them.
Evidence warranted a finding that, after the making of a written contract of sale, a shipment by the seller of goods substantially different in quantity, quality and price from those called for by the contract and a promise made by the buyer to the seller to take the goods shipped constituted a new contract which the buyer broke by subsequently failing to take and pay for them.
A hide broker representing both parties in conducting a transaction including a contract of sale, upon the seller's shipping goods substantially different from those called for by the contract could be found to have authority from the seller to receive a binding promise by the buyer to take the goods so shipped.
CONTRACT. Writ in the Superior Court dated May 9, 1940.
The defendant alleged exceptions saved at a trial before Buttrick, J. In this court the case was submitted on briefs.
S. Pearl & F.
G. Moulton, for the defendant.
E. M. Dangel & L.
E. Sherry, for the plaintiff.
This is an action of contract arising out of the nonacceptance of a carload of hides. There was a verdict for the plaintiff, and the only question presented is the correctness of the refusal of the trial judge to direct a verdict for the defendant.
The following facts were not in question: On December 14, 1939, by a written contract entered into through one Isaacson, a hide broker representing both parties, the plaintiff agreed to sell, and the defendant agreed to buy, "About 8/900" meant about eight to nine hundred. "All new standard trimmed" called for hides with the ears, snouts, and tails removed. "All fresh current receipts" referred to fresh hides. The price was "13 cents per lb flat for the Number ones and twos, any Number threes or Bulls, one third less." Shipment was to be "after Jan. 1st, 1940, to The Irving Tanning Co., Hartland, Maine," and the terms were "Invoice, Order Bill of Lading attached to Sight Draft, drawn on The Irving Tanning Co., through the Warren National Bank, at Peabody, Mass." Isaacson, according to trade practice, was to receive a commission, in this instance one per cent of the total invoice, from the seller, and also a commission, in this case seven cents per hide, from the buyer, for receiving, which included seeing that the skins were banked overnight to secure dry weight and being present when they were shaken free of salt, weighed, and loaded in the freight car. On January 16, 1940, the plaintiff shipped from Norwich, Connecticut, to Hartland, Maine, a carload consisting of seven hundred thirty-four trimmed and two hundred seventeen untrimmed hides. The bill of lading was filled out "Consigned to order of Beit Bros. Inc. Destination Hartland . . . Notify Irving Tanning Co." and had attached to it the original invoice and a sight draft dated January 8, 1940, drawn on the defendant in the sum of $5,559.40. These were forwarded through a Norwich bank to the defendant's bank in Peabody. A copy of the original invoice dated January 6 was sent to and received by the defendant's office in Boston. This showed in some detail the number, weight, description, and prices, the untrimmed hides being billed at a slightly lower price per pound than the trimmed hides. The car remained unloaded on the tracks at Hartland from January 20 until April 27, when the hides were resold by the plaintiff, without notice to the defendant, at the prevailing market price through the same broker to another buyer.
The ad damnum of the writ was $3,000, and the one count remaining in the declaration when the case was submitted to the jury was for $5,559.40 for goods sold and delivered. The verdict was for $2,030.54. This was the sum which the judge in his charge instructed the jury should be the damages in the event they should find for the plaintiff, and was based upon the difference between the contract price and the resale price, plus freight, demurrage charges, and interest. No question was raised about this amount.
The defendant's motion for a directed verdict was not based specifically upon the pleadings. Consequently, an exception will not be sustained to a denial of the motion if the evidence justifies a finding for the plaintiff in any amount. Weiner v. D. A. Schulte, Inc. 275 Mass. 379 , 385. Earle C. Dodds Inc. v. Boston Casualty Co. 308 Mass. 124 , 127. Botti v. Venice Grocery Co. 309 Mass. 450 , 458.
The shipment palpably did not comply with the terms of the written contract. If matters rested there, the plaintiff could not recover. See Rommel v. Wingate, 103 Mass. 327; Agoos Kid Co. Inc. v. Blumenthal Import Corp. 282 Mass. 1 , 7; Ryder & Brown Co. v. E. Lissberger Co. 300 Mass. 438 , 444; G. L. (Ter. Ed.) c. 106, Section 16.
On the evidence most favorable to the plaintiff, however, it could have been found that after the defendant learned the details as to the contents of the car, including the respective prices of the various kinds of trimmed and untrimmed hides, it made a new agreement to take them.
From conflicting testimony the following could have been believed: About January 18 or 20 Kirstein, president and treasurer of the defendant and "virtually the owner of the defendant business," had a conversation with Isaacson, who asked the reason for not paying the draft. Kirstein replied that he had been away and was a little pressed for funds; that Robbins, the office manager and head bookkeeper at the defendant's office in Boston and "in charge of the office affairs" during the absence of Kirstein, had informed him there was something wrong with the invoice, but that Kirstein did not then have time to look into it and would see Isaacson later. Sometime in February Isaacson again saw Kirstein, who said he noticed the invoice had some untrimmed hides in it, and asked what Isaacson was going to do about it. The latter told him that if he would look at the invoice, he would see ample allowance had been made to take care of the trimming. At first Kirstein said that he did not...
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