Edelstone v. Schimmel

• Decision Date: 21 May 1919
• Parties: EDELSTONE et al. v. SCHIMMEL (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 45

123 N.E. 333

EDELSTONE et al.

v.SCHIMMEL (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1919.

Appeal from Municipal Court of Boston, Appellate Division; James P. Parmenter, Judge.

Action by Harry Edelstone and others against Harry Schimmel. In the first case there was finding for plaintiffs, and the case was reported to the appellate division of the Municipal Court of the city of Boston, which vacated the finding, and directed judgment for defendant, and plaintiff appeals. In the second case there was finding for plaintiffs, and the case was reported to the appellate division, which dismissed the report, and defendant appeals. In the first case, finding for plaintiffs ordered to stand, and judgment ordered accordingly; in the second case, order dismissing report affirmed.

The evidence on the issue of plaintiffs' damages in the second case was their testimony that there was no general market price for the willowed picker sold by them, but that in early January, 1917, the price of such goods had advanced, and they were worth 6 to 6 1/2 cents a pound. The controversy between the parties as to the mistake in plaintiffs' sales slip in its statement of the price occurred early in January.

Leon R. Eyges and Samuel B. Finkel, both of Boston, for appellant.

Philip Rubenstein, of Boston, for appellees.

RUGG, C. J.

These are two actions of contract based upon sales of goods. For convenience we treat each case separately.

First Case.

This is an action to recover for goods sold and delivered. On December 29, 1916, the defendant at the plaintiffs' place of business in Boston made an agreement to buy of the plaintiffs-- ‘ten (10) bales of oil mill motes at 4 1/4 c. per pound, f. o. b. Boston terms 1% 10 net 30 days, to be shipped by the N. Y., N. H. & H. R. R.-to be shipped at once to New York.’

There was no dispute between the parties as to the terms of this agreement. These goods were shipped to the defendant by the carrier named on December 30, 1916, and a nonnegotiable bill of lading was issued on that date, the defendant being named as consignee. This bill of lading was not forwarded to the defendant, but was retained by the plaintiffs, who sent no notice to the defendant respecting it. Owing to other differences between the parties, the plaintiffs on January 11, 1917, and again four days later wrote in substance to the defendant that they would not deliver to him the oil mill motes unless he accepted and paid demand or sight draft less one per cent. discount. The plaintiffs also notified the carrier at Boston on January 9 not to deliver the mill motes to the defendant. The defendant on January 11, 1917, brought suit in New York City for breach of contract and there attached goods of the plaintiffs alleged to be in the possession of the New York, New Haven & Hartford Railroad.

[2] The bill of lading is not printed in the record. The plaintiffs testified that the ‘defendant could get the goods on arrival without bill of lading.’ The defendant testified that without the ‘bill of lading, as matters stood, he could not get possession of the mill motes.’ The court refused to grant the defendant's sixth request for ruling, which amongst other matters contained a statement of fact to the effect that the defendant could not obtain the possession of the motes without the bill of lading. There was no other evidence and no express finding respecting the bill of lading and its effect on delivery to the defendant in New York. Under the circumstances it must be assumed that mere failure of the plaintiffs to forward it to the defendant had no effect on his right to demand delivery of the goods in New York. See in this connection In Matter Bills of Lading, 14 Interst. Com. Com'n R. 346, and New York Central & Hudson River Railroad Co. v. York & Whitney Co., 230 Mass. 206, 213, 217, 119 N. E. 855. It is the general rule that a nonnegotiable contract of shipment by a common carrier is discharged by delivery to the consignee without the surrender or production of the bill of lading. The fact that one is consignee is evidence of ownership. Brown v. Floerscheim Mercantile Co., 206 Mass. 373, 375, 92 N. E. 494;Rosenbush v. Bernheimer, 211 Mass. 146, 149, 151, 97 N. E. 984, Ann. Cas. 1913A, 1317.

The contract between the parties was plain. The ordinary rule is that, in case of sales of goods to be shipped by the vendor from one place to another, delivery to the carrier is delivery to the buyer unless there is special agreement to the contrary. Fechteler v. Whittemore, 205 Mass. 8, 11,91 N. E. 155;Twitchell-Champlin Co. v. Radovsky, 207 Mass. 72, 75, 92 N. E. 1038;Levy v. Radkay, 232 Mass. --, 123 N. E. 97; Sales Act, St. 1908, c. 237, §§ 19 and 46. Delivery of the goods to the carrier together with the taking of a nonnegotiable bill of lading in the name of the defendant was strong proof of intention by the plaintiffs to transfer the title to the defendant. Wigton v. Bowley, 130 Mass. 252. The general finding of the trial judge in favor of the...