Boston Food Products Co. v. Wilson & Co.

• Decision Date: 05 June 1923
• Citation: 245 Mass. 550,139 N.E. 637
• Parties: BOSTON FOOD PRODUCTS CO. v. WILSON & CO. and Trustee.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 550

139 N.E. 637

BOSTON FOOD PRODUCTS CO.

v.WILSON & CO. and Trustee.

Supreme Judicial Court of Massachusetts, Suffolk.

June 5, 1923.

Exceptions from Superior Court, Suffolk County; Robt. F. Raymond, Judge.

Action of contract by the Boston Food Products Company against Wilson & Co., with trustee process. Verdict for plaintiff, after defendant's motion for directed verdict was denied, and defendant excepts to the denial of directed verdict for it, and to the denial of its motion for a new trial. Exceptions overruled.

Wheaton Kittredge and William L. F. Gilman, both of Boston, for plaintiff.

Adams & Blinn and Amos L. Taylor, both of Boston, Fred J. Johnson, of Dorchester, and Conrad P. Richardson, of Boston, for defendant.

CARROLL, J.

The Boston Food Products Company (hereinafter called the plaintiff) in its action against Wilson & Co. (hereinafter called the defendant) recovered damages for the breach of a contract to sell and deliver 500,000 pounds of sausages at $15.75 per hundredweight,in the sum of $17,819.05. By agreement of the parties the jury returned a verdict for the defendant in its cross-action in the sum of $3,924.85 on the first count of its declaration, for sausages delivered to the plaintiff at $20.50 per hundredweight, this count being on an account annexed for money due, with interest.

The defendant, in February, March, and April, maintained a plant in Cambridge for the manufacture of sausage, and during this time R. H. Heyer was the manager. One of the questions involved in the controversy is his authority to make the contract relied on by the plaintiff. John C. De Mille, president of the plaintiff corporation, testified that in February, 1919, he learned that bids were to be opened for the supply of sausage for the United States Quartermaster's Department of the army. February 15 he went to the defendant's place of business. He testified that he saw on the building the defendant's trade-mark and a sign bearing the name of Wilson & Co. He there met Mr. Heyer, who was in charge of the defendant's plant, and told him that he had never bid ‘on sausage for the government before’ and ‘was anxious to bid.’ Under date of February 18, 1919, the plaintiff received a letter from the defendant, written on the stationery of Wilson & Co., signed ‘R. H. Heyer, Wilson & Company,’ setting forth an offer to sell daily 10,000 pounds of sausage at $15.75 per hundredweight during the balance of February and during the whole month of March. On February 24, 1919, De Mille again visited the defendant's place of business and presented a letter dated February 26, 1919 (hereinafter spoken of as Exhibit 2) from the plaintiff to the defendant: It stated in substance that the plaintiff had taken an order from the Quartermaster's Department, U. S. A., for approximately 500,000 pounds of sausage:

‘Your price to us to be $15.75 per cwt., delivered at our plant. * * * Quickness of delivery was one of the prime factors reckoned upon. * * * This means we will require about 15,000 pounds of sausage a day, the deliveries to begin just as soon as the empty cans arrive, which we expect will be in a week or ten days. * * * Regarding payment, our sale * * * is to the Quartermaster's Department. * * * They aim to pay in about 10 days from delivery, which means practically 15 days. We agree in turn to pay you promptly when we receive payment. We will let you know in due time the probable date of arrival of cans so that we may begin.’

The letter also stated that, in order to help the defendant to ‘get your capacity up to 15,000 pounds a day, we are ready to loan you either one, or both, of our chopping machines,’ and offered if the motor attached was not of right voltage to supply another motor. There was evidence that Exhibit 2 was delivered to Heyer, who after reading it said:

‘This is all right, except that I did not agree to deliver this at your plant.’

After some discussion of this question it was agreed, according to the testimony of De Mille, that the plaintiff should, at its expense, carry the goods from the defendant's plant and that Heyer, referring to the place of delivery, said:

‘Otherwise the letter is all right and confirms our understanding with you. * * * Of course the credit department will have to pass on the credit, but I have no doubt that that will be all right.’

A letter dated February 26 (hereinafter called Exhibit 3), addressed to the defendant's credit department, from the plaintiff, was left with Heyer. This letter referred to the order given the defendant and stated that the plaintiff's quick assets were $75,000; it also referred to the Metropolitan Trust Company and concerns in the trade. In consequence of Exhibit 3, a telephone call was received from the defendant's credit department by the plaintiff's president.

On March 25 or 26, 1919, the plaintiff received a letter from the defendant, dated March 25, which stated:

‘As our agreement runs out, Monday, March 31st, on the price of $15.75 per cwt., would like to know whether you want us to figure on price for April. [Signed] Wilson & Company.’

Under date of March 27 the plaintiff replied denying that the contract expired March 31 at the price of $15.75 per cwt. and calling attention to Exhibit 2, and to the facts that there was no other contract, that the defendant had been since March 13 delivering sausage in pursuance of the terms of this letter, and that the defendant's deliveries to date were very much behind. In answer thereto a letter was received from the defendant terminating the contract ending March 31, and calling the plaintiff's attention to the agreement of February 18. There was also evidence from the government inspectors who visited the defendants daily while the contract was in existence, that Heyer was the manager of the plant and was the one to whom complaints were made. There was evidence that the market price for sausages about April 1 was about 20 cents per pound.

The defendant's district manager testified that Heyer had no authority to make the contract in question. It appeared that on cross-examination he answered to the question whether Heyer was dirctor of sales in Cambridge, ‘Yes' and ‘No,’ and explained this saying, ‘Occasionally we made small sales, but probably 98 per cent. of the business were branch transfers,’ and that this sale to the plaintiff was not a branch transaction. Heyer was called by the defendant and in direct examination testified that he was manager of the defendant's plant and was in charge until April 15, 1919; that he did not remember stating to De Mille that Exhibit 2, other than the question of cartage, accurately embodied his understanding of the agreement between him and De Mille; that when the letter (Exhibit 2) was handed to him, De Mille said he would require 500,000 pounds, and that to facilitate the defendant in ‘getting this out he would install some machinery, which he did.’ Heyer also testified that he said at this conversation that he did not think he ‘could get out 15,000 pounds a day’; that he did not remember that anything was said about the price at that time, and further that ‘he did know that the letter was handed to him and the price was embodied in there, and that he didn't take any objections to it; that the only thing he took exceptions to was the cartage’; that he read the letter and noticed the price in it, ‘but did not think it had any bearing on the agreement that he made.’ and, on being asked why he sent the letter of March 25, replied, ‘as I figured our agreement run out after the 31st day of March, and to figure on a new price for April.’ On cross-examination he testified that, when Exhibit 2 was handed to him, he glanced over it, and ‘knew that it said 500,000 pounds approximately, * * * your price to us to be $15.75 per hundredweight delivered at our plant’; that his only objection was to the place of delivery and that ‘he made no objection to the 500,000 pounds or no objection to the $15.75.’ He further testified that as manager of the Cambridge plant he had charge of the business there and was the head man in charge of the plant and had charge of ‘the operations and the handling of the product’; that he had salesmen who operated ‘peddler wagons' and in answer to the question whether it was a part of his duty to make sales replied, ‘We always try to make sales, to get the business.’

The defendant's motion for a directed verdict was denied, and after the verdict for the plaintiff it filed a motion for a new trial, which was also denied. The case is before us on exceptions to the denial of these motions and to the admission and exclusion of certain evidence.

The first contention of the defendant is that by reason of the plaintiff consenting to the verdict for the defendant on the first count of its declaration in the cross-action, all the issues in the case are disposed of and it is res judicata against the plaintiff. As stated by the defendant in its brief:

‘The plaintiff's consent to a verdict against it in the cross-action now forever estops it from questioning the correctness of all elements which went to make up that verdict on the merits of the case.’

The plaintiff contended that the contract with the defendant required it to deliver 500,000 pounds of sausage at $15.75 per hundredweight, according to Exhibit 2. The defendant's bill of items, on its first count, contains 34 items of deliveries, beginning February 25, 1919, and ending April 8; and 13 credit items showing a balance of $3,792.13. All the deliveries, including those of March 27, were at $15.75 per hundredweight. The deliveries in April, 7 in number, were at $20.50 per hundredweight. The total credits aggregated $17,507.94. The plaintiff's testimony tended to show that the total paid by it was $16,753.15. The plaintiff also introduced in evidence 4 invoices of sausage delivered in April at $15.75 per hundredweight.

The entering of a verdict for the defendant in its cross-action,...