Burgess Sulphite Fibre Co. v. Broomfield

• Decision Date: 03 January 1902
• Citation: Burgess Sulphite Fibre Co. v. Broomfield, 180 Mass. 283, 62 N.E. 367 (Mass. 1902)
• Parties: BURGESS SULPHITE FIBRE CO. v. BROOMFIELD et al.
• Court: Supreme Judicial Court of Massachusetts

180 Mass. 283

62 N.E. 367

BURGESS SULPHITE FIBRE CO. v. BROOMFIELD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1902

COUNSEL

Chas K. Cobb, for plaintiff.

Philip J. Doherty and D. A. Lourie, for defendants.

OPINION

LORING J.

On April 26, 1900, the plaintiff and defendants entered into the following contract: 'Berlin, N. H., U.S. A., April 26 1900. Burgess Sulphite Fibre Co., Berlin, N. H.--Gentlemen We hereby agree to pay you twelve dollars ($12.00) per ton of 2,000 lbs., spot cash, f. o. b. Berlin, for all your iron which you may desire to sell, both cast and wrought; also all cables. This offer covers everything in the line of iron whether located in your mill or on your premises, except galvanized iron, and is to be taken where found, we to assume all costs of removing the same, you to have privilege of indicating what you desire to have us take and of reserving what you wish. We furthermore agree to remove promptly all the iron which you wish us to take after acceptance of the proposition by you, and guaranty not to do any damage whatever nor to interfere with your operations or work in any way. P. Broomfield & Co., per C. Broomfield. Accepted Burgess Sulphite Fibre Co., by G. E. Burgess, Supt.' The defendants' first contention is that this was not a contract, but an offer or option, which never became binding. The plaintiff and defendants have discussed at length a great many cases in other jurisdictions which are in conflict, but there is no real conflict in these cases in regard to the principle involved. The principle on which these cases travel is that, when the only consideration is one by way of mutual promises, if the plaintiff is under no obligation in the matter, there is no consideration for the promise of the defendant, and his promise is nudum pactum. This principle was applied in this commonwealth in Thayer v. Burchard, 99 Mass. 508. In that case the defendants, who were operating a railroad as trustees for bondholders, wrote to the plaintiffs, who were grain merchants buying flour and grain in the west, that they would transfer flour and grain for them at $4 a ton, 'this rate to continue in force until close of navigation, unless notice to the contrary.' In answer the plaintiffs wrote, 'We accept the proposition.' This was held to be an offer on the part of the defendants, and not a contract, because the plaintiffs did not come under any obligation to the defendants to furnish any flour or grain for transportation, and were at liberty to buy grain or not, as they pleased, and, if bought, to ship it by the defendants' railroad or any other line. But that principle does not apply to the case at bar. The circumstances under which the contract in question was made are stated in the testimony of the superintendent of the plaintiff corporation. From that it appears that the plaintiff corporation owns a large mill for manufacturing sulphite fibre to be used in making paper, and at the date of the contract had something over 340 tons of scrap iron, which it wished removed from its premises, part of it being in the mill and part in the mill yard. Two-thirds had been 'culled,' and was ready to be moved away; the other third was lying in heaps, 'mixed up' with pulleys, shaftings, and bearings, which the plaintiff could use in the mill, and did not want to sell; and, in addition, 'mixed up' in the heaps, were some brass and lead, not included in the contract; also some valves, some good and some not. Those which were good it wished to keep, and those not good they wished to sell. On the day in question an agent of the defendants appeared, with a letter of introduction, in which they stated that their firm 'are the people who bought the scrap material' of another sulphite mill, 'and if you have any scrap material to sell' they would be glad if the plaintiff would let their agent 'look over the stock, and he will quote you our best price.' The superintendent testified that he went with the agent of the defendants, and looked at the material it had for sale, and immediately afterwards the written agreement was entered into. The defendants' agent in question testified that he saw a clerk of the plaintiff corporation, not the superintendent, and that he did not look at the heaps of iron at all. The plaintiff, immediately after the contract was signed, asked the defendants to take away the iron. After putting off the day for beginning work because the market had fallen and the defendants' mills would not take the iron, the defendants refused to do anything in the matter. The plaintiff then had the iron taken away by another dealer in scrap iron, at a loss,...