Bernstein v. W.B. Mfg. Co.
| Decision Date | 31 May 1921 |
| Citation | 131 N.E. 200,238 Mass. 589 |
| Parties | BERNSTEIN et al. v. W. B. MFG. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.
Action by Isidor Bernstein and others against the W. B. Manufacturing Company. Defendant's request for a directed verdict was denied, and it brings exceptions. Exceptions sustained, and judgment entered for defendant.
The action was by a seller for the buyer's breach of a contract by refusal to accept. The order for the goods provided that--
‘This order is given and accepted subject to a limit of credit and determination at any time by us.’
A part of the goods contracted for were delivered and paid for but when plaintiffs shipped a part of the balance, defendant refused to accept them.
See, also, 235 Mass. 425, 126 N. E. 796.
An order for goods on a printed order blank, stating that the order was given and accepted subject to a limit of credit and determination at any time by the seller, gave the seller a right of termination of the order, and not merely of the limit of credit, and brought the order within the rule that in a bilateral agreement both of the mutual promises must be binding or neither will be.
Where an order for 174 dozen suits and 5 sets of samples was void for want of mutuality, in that it authorized the seller to terminate it, the delivery and acceptance of the sample suits did not render the agreement supported by a sufficient consideration, as the seller was not thereby precluded from exercising his reserved option as to the balance of the order.
Phipps, Durgin & Cook and George F. Williams, all of Boston, for plaintiffs.
Joseph B. Jacobs and Jacobs & Jacobs, all of Boston, for defendant.
This is an action to recover damages for the alleged breach of a contract, which the plaintiff claims resulted from an order that the defendant admits it placed with the plaintiff for the delivery of certain goods.
The order so given called for the sale and delivery of one hundred and seventy-four dozen boys' wash suits, and five sets of samples thereof at $16.50 a dozen. The admitted facts and evidence show that the plaintiff delivered to the defendant on August, 20, 1918, the five sets of samples called for by the order, and that it was paid therefor by the defendant in September, 1918. The evidence also shows that the plaintiff on December 15, 1918, shipped to the defendant seventy-two dozen wash suits; that they were delivered in the shipping room of the defendant; that the defendant ‘opened them up’ and immediately notified the plaintiff that it would not accept the goods. A memorandum of the order was made by the representative of the plaintiff on a printed order blank of the plaintiff. It was not signed by the defendant, and it contained the following printed clause:
‘This order is given and accepted subject to a limit of credit and determination at any time by us.’
At the close of the evidence the defendant excepted to the refusal of the judge to direct a verdict for the defendant.
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...22, 88 S.E. 717; Gardiakos v. Vanguard Communications, Inc. (1976), 38 Ill.App.3d 937, 350 N.E.2d 210; Bernstein v. W.B. Manufacturing Co. (1921), 238 Mass. 589, 131 N.E. 200; Portland Gasoline Co. v. Superior Marketing Co. (Tex.Civ.App.1951), 240 S.W.2d 346; American Agricultural Chemical ......
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