Brown v. Henry

• Decision Date: 01 March 1899
• Citation: Brown v. Henry, 172 Mass. 559, 52 N.E. 1073 (Mass. 1899)
• Parties: BROWN et al. v. HENRY et al.
• Court: Supreme Judicial Court of Massachusetts

172 Mass. 559

52 N.E. 1073

BROWN et al. v. HENRY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1899

This action is one of contract, to recover damages for defendants' refusal to deliver about 25,000 pounds of Alabama wool, alleged to have been sold to the plaintiffs by Richard J. Salter, a wool broker, by memorandum dated January 23, 1897, of which the following is a copy: "Boston January 23, 1897. Brown & Adams, City--Gentlemen: We beg to advise having bought for your account, to-day, of Messrs Henry & Parsons, about 25,000 lbs. Ala. wool, stored in the Fort Hill storage warehouse, at 161/2c. per pound. Terms, 60 days. The wool to be paid for within 60 days, and interest allowed for the unexpired time. Buyers to have the benefit of unexpired storage and fire insurance, and to assume charges therefor. Sacks at value. Tare three pounds per sack. Respy., Salter Brothers, Brokers."

The defendants asked the court to rule as follows: "(1) On the evidence the defendants are entitled to a verdict. (2) Salter Bros. had no authority to bind the defendants to 'Terms, 60 days.' (3) There is no evidence that the defendants waived any right to object to 'Terms, 60 days,' or ratified Salter's action in inserting that clause. (4) There is no evidence that the defendants waived any right to object to provision, 'Buyers to have the benefit of unexpired *** fire insurance,' or ratified Salter's action in inserting that clause. (5) The term, 'Buyers to have the benefit of unexpired *** fire insurance,' means whatever fire insurance there was unexpired upon this wool. (6) The evidence of a custom concerning unexpired fire insurance does not, even if believed, control the meaning of these words, so that they shall mean a part of the unexpired fire insurance. (7) Salter had no authority to insert the clause concerning unexpired fire insurance. (8) There is no evidence that a seller's giving a broker a price on wool, without more, gives him authority to bind the seller to sell upon 60 days' credit, even if the purchaser is in good credit."

The plaintiffs based their case on the existence of a custom giving the brokers authority to act as they did, and also on ratification of the contract made by the brokers. The defendants excepted to the refusal to give their requests for rulings, and to the instructions as given, so far as in conflict with said requests, and to the instructions as to what would amount to a ratification of the alleged sale; but the defendants requested no other or further instructions on that subject. The jury returned a verdict for the plaintiffs for $375, and were then asked by the court whether they found that there was such a custom in the wool trade as was claimed by the plaintiffs, and replied "that they found that there was not such a custom."

COUNSEL

Sherman L. Whipple and W.R. Sears, for plaintiffs.

Elder, Wait & Whitman, for defendants.

OPINION

KNOWLTON J.

It appeared upon the undisputed evidence that the broker inserted in the written memorandum of sale certain provisions which were not expressly authorized by the defendants. The jury found that there was no custom under which he could bind the defendants by these agreements. He was not the defendants' general agent, and the terms of his authority to make a sale could be inquired into. He could bind the defendants only by such contract as they authorized him to make. Coddington v. Goddard, 16 Gray, 436; Remick v. Sandford, 118 Mass. 102. Under the instructions of the court, and the finding above stated, the verdict for the plaintiffs must rest on a finding that the defendants ratified the broker's contract. The jury were allowed to find ratification on the ground that the plaintiffs were right, and the defendants wrong, in regard to the defendants' contention that the broker was not authorized to sell the wool at the price named in the contract; it appearing that the defendants stated, as their reason for repudiating the contract, that the broker had no authority to sell the wool at that price, and failed to make any objection to the provisions of the contract about credit, and the allowance of interest, unexpired storage, and fire insurance. These latter provisions were inserted in the contract by the agent without authority. There was no evidence that the situation of the plaintiffs was changed, or that their rights were in any way affected by reason of the form of the defendants' objection and disavowal.

Where something is to be done by one of two parties as a condition precedent to his exercise of a right against the other, the other may waive the performance, either wholly or in part. If there is an attempt at performance, which falls short of the requirement, and if objection is made by the party for whom it is done, with a statement of the grounds of his objection the objector often is held to have waived his right afterwards to object, on other grounds, when the other has gone forward, relying upon the implied representation that the performance is satisfactory in other particulars. Clark v. Insurance Co., 6 Cush. 342; Searle...