Doylestown Agr. Co. v. Brackett, Shaw & Lunt Co.

• Decision Date: 13 August 1912
• Citation: 84 A. 146,109 Me. 301
• Parties: DOYLESTOWN AGR. CO. v. BRACKETT, SHAW & LUNT CO.
• Court: Maine Supreme Court

84 A. 146

109 Me. 301

DOYLESTOWN AGR. CO.

v. BRACKETT, SHAW & LUNT CO.

Supreme Judicial Court of Maine.

Aug. 13, 1912.

Exceptions from Supreme Judicial Court, York County.

Action by the Doylestown Agricultural Company against the Brackett, Shaw & Lunt Company. Verdict for plaintiff, and defendant brings exceptions and moves for a new trial. Exceptions overruled, and motion overruled conditionally.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, and BIRD, JJ.

Leroy Haley, for plaintiff.

Mathews & Stevens, for defendant.

SAVAGE, J. Assumpsit upon an account annexed to recover the price of certain agricultural implements and fittings sold and delivered to the defendant, amounting to $4,607.35. The plaintiff recovered a verdict for $3,958.44. The case is before this court upon the defendant's motion for a new trial and 28 exceptions to the exclusion of evidence.

As the merits of nearly all the exceptions are necessarily involved in the determination of the rights of the parties under the motion, it will not be necessary to consider them in detail.

These facts appear: On March 12, 1909, the parties made a written contract, which, so far as material to the discussion of the case, contained the following provisions: The plaintiff sold and the defendant bought 50 cultivators for $1,125. The delivery was to be f. o. b. cars at Caribou, Me. Additional orders for like merchandise, shipped during the life of the contract, were to be subject to its prices, terms, and conditions. The agreement was to terminate September 1, 1911. The terms of settlement were "net cash, October 1, 1909." All cultivators remaining unsold by the defendant September 1, 1909, were to revert and become the property of the plaintiff, without recourse to the defendant. It was agreed "as a condition" that one J. P. Algire should go to Caribou with the defendant's president, Brackett, and endeavor, to the best of his ability, to make sales of the number of cultivators specified. The defendant agreed to bear Algire's actual traveling expenses from Philadelphia and return, and his hotel bills while making the sales. It would seem that this contract was originally made by Algire as special agent for the plaintiff, subject to approval, and it was afterwards approved by the plaintiff.

The 50 cultivators specified in the contract, and 108 others, under the terms of the contract, were delivered to the defendant, or on the defendant's order, at different places in Maine in April or May, 1909, at agreed prices, amounting to $3,552.50. The defendant is charged with $310.56 for certain fittings and other merchandise, of which it acknowledges a liability for $81.99. Its liability for the remainder depends upon its liability for the cultivators. The rest of the account relates to threshers and fittings, and for one of these, with articles accompanying it, amounting in all to $235, the defendant denies any liability whatever.

Of the 158 cultivators received by the defendant, it disposed of 104 to various local dealers in agricultural machinery on their written orders, by which they respectively became bound to pay for the cultivators ordered, with a stipulation in each order "that the title to said machinery shall remain in and with Brackett, Shaw & Lunt Co." until paid for. And in one such order for 50 cultivators, dated March 31, 1909, it was also stipulated that "all cultivators not sold this season will remain the property of Brackett, Shaw & Lunt Co." The price to the defendant of these cultivators was $2,372.50. The orders or contracts which the defendant took from dealers for the other 54 cultivators were not put into the case. But the plaintiff's president, on cross-examination, was shown these contracts, and inquired of, without objection, as to their contents. The contracts themselves, of course, were the best evidence. But the witness' testimony is the best we have before us, and, having been given without objection, it must be considered. That testimony shows that 27 cultivators were sold outright to dealers for $607.50, and 27 were consigned to dealers at the same price. And, while some of these orders from dealers were taken in the plaintiff's name, they were taken on the defendant's account, and were so recognized.

The defense as to the cultivators, as outlined in the defendant's brief statement, is twofold: First, that, as an inducement to the defendant to contract for the cultivators, the plaintiff or its agent falsely represented that the cultivator in question, known as the New Age cultivator, was identical with the Iron Age cultivator, which was then being sold, and which was well and favorably known, among the farmers of Aroostook county, in which locality the larger part of the cultivators were intended to be put on sale; and that the parts of the New Age were interchangeable with those of the Iron Age. As to this defense, it is necessary to say only this: While it is true that, under the circumstances of this case, such representations about the physical characteristics of the cultivators to be purchased, made to one who had no opportunity to know the true facts, would be material, and, other necessary elements being proved, if the representations were false, the defendant would be entitled either to rescind, or to recoup in damages, but unfortunately for that defense there is no evidence in the case to support it. The defendant did not rescind and restore for any cause; nor is there any basis shown for recoupment on account of material false representations.

Secondly, that in accordance with the original contract Algire went to Aroostook county with Brackett, and helped him secure orders from dealers for substantially all of the 158 cultivators; and that in selling these cultivators Algire made false representations, on the strength of which the sales were made. Many of the representations claimed to have been false were manifestly immaterial, for they were merely the expression of Algire's opinion. But it is claimed, and proven too, that Algire did represent the cultivator as being like the Iron Age, with which the purchasers were familiar—so like it, indeed, that the parts of the two cultivators were interchangeable. That, we think, was material. And it is shown that the representations were false. It is not shown that Mr. Brackett knew them to be false.

The dealers undertook to sell the cultivators to their customers. They did sell some. But in the end the customers, all but two, returned them to the dealers. The complaint in general was that the cultivator was not adapted to the Aroostook soil, which was probably true, but which, so far as we can see, is not material to any legitimate issue in this case. But the specific complaint in many cases concerned a wooden pin brake in the New Age, which was one of the many features in which the New Age was not like the Iron Age. Although some of the dealers notified the defendant of the troubles, none of them appear effectually to have rescinded their contracts. They stored, but did not restore, the goods, without which, or a waiver of it, rescission is ineffectual.

Under this condition of things, and assuming that the individual purchasers were justified in returning the cultivators to the dealers, though it does not anywhere appear upon what terms or representations any individual purchaser had made his purchase, or whether he had a right to rescind, we come now to consider the defendant's contentions respecting the consequences of Algire's false representations. It contends that in selling or consigning cultivators to dealers Algire was the plaintiff's agent, for whom the plaintiff was responsible. From this premise it is argued that if Algire made false representations they were the plaintiff's false representations, and that if, in consequence of these representations, the dealers had the right to rescind, and did rescind, the plaintiff cannot justly claim, nor lawfully maintain a claim, that the cultivators were sold prior to September 1, 1909, within the meaning of the contract. Even if all the defendant's premises were sound, it is unnecessary to inquire whether the conclusion would follow, and whether the cultivators would have remained unsold September 1, 1909, and would have reverted and become the property of the plaintiff, as provided by the contract, and no action for their price would lie against the defendant.

For we think the essential premises of the defendant's contention are not sound. We have already noticed the failure on the part of the dealers to make complete rescission. We think, also, that Algire must be regarded as the defendant's agent it may be granted that Algire was in the employment of the plaintiff in some capacity. And it must be assumed, under the language of the contract relating to Algire's expenses, that, unless Algire worked for nothing, which is not to be assumed, the plaintiff paid him for his services in selling these cultivators. Nevertheless, in making these sales he was the defendant's agent The legal relationship, whatever it was, was created by the written contract, and what it was must be determined by the terms of the contract, read in the light of existing conditions. The situation contemplated by the contract was the one which actually...