Ely v. James

• Decision Date: 29 June 1877
• Citation: 123 Mass. 36
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Ezra B. Ely & another v. Edward B. James & another

123 Mass. 36

Ezra B. Ely & another v. Edward B. James & another

Supreme Court of Massachusetts

June 29, 1877

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Suffolk. Contract on an account annexed for the price of a cargo of coal. Writ dated November 18, 1874. Answer, payment by the note of George B. James & Co. At the trial in the Superior Court, before Aldrich, J., the following facts appeared in evidence:

The plaintiffs were shippers of coal in New York, and the defendants were dealers in coal in Portland, Maine, under the firm name of James & Williams. Edward B. James, one of the defendants, was in the employ of George B. James & Co., in Boston, and also purchased and ordered coal in Boston for his own firm in Portland. F. B. Crowell, travelling in the plaintiffs' employ, called on Edward B. James at the office of George B. James & Co., in Boston, and solicited an order on the plaintiffs for a cargo of coal for the defendants, offering to sell it at a certain price. James declined to give this price, but offered to take a cargo for his firm at another price, which was less than Crowell was authorized to sell for, and Crowell thereupon signed and sent to the plaintiffs a telegram, on June 20, 1874, in the following terms: "James & Williams offer six eighty for Lehigh broken, delivered Portland." This was the offer James had made to him. The plaintiffs thereupon telegraphed to the defendants an acceptance of this offer, and shipped the coal by a schooner to the defendants at Portland, Maine, on June 27, 1874, and sent them an invoice of the coal, as follows:

"New York, June 27th, 1874. Messrs. James & Williams bought of E. B. Ely & Co. Lehigh Coal per Sch. Rebecca Florence.

397 tons broken @ $ 6.80 del'd at Portland, less

freight @ 1.35, $ 5.45

$ 2,163.65

Add 4 mos. & 3 days int 7%

1.74

$ 2,215.39"

After receiving the coal, the defendants signed and sent to the plaintiffs in New York the following letter, inclosing the invoice and a note of George B. James & Co.: "Boston, July 11, 1874. Messrs. E. B. Ely & Co., New York. Dear Sirs: Enclosed please find G. B. James & Co.'s note dated June 27th, four months, for $ 2,215.39, being in settlement of the enclosed invoice coal per Rebecca Florence, which please receipt and return to us here." The plaintiffs thereupon wrote the following receipt on the invoice, and sent it to the defendants: "Received payment by 4 mos. note of G. B. James & Co., Boston, for $ 2,215.39 due Oct. 30, '74. E. B. Ely & Co." The plaintiffs also wrote to the defendants as follows: "New York, July 13, 1874. Messrs. James & Williams: Yours of the 11th with G. B. James & Co. note at 4 mos. for cargo per Rebecca Florence received. We would much prefer shorter paper, as we cannot use it to same advantage."

The plaintiffs kept the note and got it discounted, but it was protested on October 30, 1874, for non-payment, resulting from the failure about that day of George B. James & Co., and the plaintiffs paid the amount due on the same to the holder. George B. James & Co. were adjudicated bankrupts in March, 1875, and no dividend to their creditors has been declared. On November 6, 1874, the plaintiffs offered the note back to the defendants, and notified them that the plaintiffs would hold them for the price of the coal, but the offer was not accepted, and the plaintiffs produced the note at the trial.

The defendant James testified that, after the occurrence between him and Crowell above related, and after Crowell had got out of the door of the office, he, James, called him back and asked him if this coal was to be paid for in George B. James & Co.'s paper, as usual, and that Crowell said "Yes," and another witness testified that he heard James ask this of Crowell, but could not remember his reply. The defendants further testified that they had purchased coal of the plaintiffs before, and sent George B. James & Co.'s notes to the plaintiffs for it, and that the notes were paid, but whether they had so purchased more than one cargo they could not remember. Crowell testified that nothing was said about George B. James & Co.'s paper between James and himself. One of the plaintiffs and Crowell testified that the plaintiffs had given him authority to travel and sell and solicit orders for coal at prices fixed in a circular, with liberty to vary these prices within a limit stated by the plaintiffs to him, and to fix the terms as to time of payment, and to sell for cash or its equivalent, and that the plaintiffs reserved the right to reject any order so obtained, if the credit of the person ordering was unsatisfactory to them, but that Crowell had no authority to agree that the notes of others than the purchasers should be taken for the coal, and Crowell testified that, in fact, he had never done so. The plaintiffs also testified that they had, before shipping the cargo in question, shipped only one cargo to the defendants, and it appeared that the order for this cargo was taken by Crowell, and was a written one, signed by the defendants, in terms as follows: "Portland, Me., July 14, 1873. E. B. Ely & Co. sold James & Williams 150 to 175 tons, Susq. stove f. o. b. 5.40. Insure. Freight limited to 1.90, if cannot ship for that, can cancel the order. Cash or 3 mos. note 7% int."

The defendants offered in evidence the proof by the plaintiffs of the note of George B. James & Co. against their estate in bankruptcy, in November, 1875, as tending to show that the plaintiffs treated the note as their own, and that they had originally accepted it as payment, and the judge admitted the evidence, the plaintiffs excepting.

The plaintiffs contended that the contract respecting their receiving the note of George B. James & Co. was to be interpreted and governed by the law of New York, and that by that law the transaction did not amount to payment, and read the cases of Vancleef v. Therasson, 3 Pick. 12, and Schemerhorn v. Loines, 7 Johns. 311, on this point.

The plaintiffs E. B. Ely testified that his firm had no intimation that Crowell had agreed that George B. James & Co.'s paper should be taken for the cargo in question. The coal was shipped from New York for Portland on a vessel procured for that purpose by the plaintiffs.

The defendants' counsel argued to the jury, among other things, that no evidence was before them to show what the law of New York was at the time of the transactions in question, the only authority read being a decision in 1810.

The plaintiffs, before the charge to the jury, requested the judge to rule as follows:

"1. That the whole contract was to be interpreted by the law of New York, and that the giving of George B. James & Co.'s note did not amount to payment.

"2. That the contract was contained in the correspondence only, and any oral agreement made by Crowell was not to be taken as a part of it.

"3. That, there being no evidence as to there having been any previous agreement as to George B. James & Co.'s paper, the agreement of Crowell as to this cargo was not an agreement that it should be payment.

"4. That if there was no agreement in previous transactions that George B. James & Co.'s paper should be received in discharge of the defendants' liability for coal, then Crowell did not agree to take George B. James & Co.'s note in full discharge for this cargo.

"5. To direct a verdict for the plaintiffs."

The judge refused to give these requests, the second on the ground that the evidence as to what Crowell had orally agreed went to the jury without objection, and left it to the jury to say whether there had been any such previous agreement as that mentioned in the third request, and to find what Crowell agreed.

The judge also instructed the jury that if there was an express agreement, at the time the contract of sale was made, to take the note of George B. James & Co. in absolute payment for the coal, it was a binding contract, whether construed by the law of Massachusetts or that of New York; and further instructed the jury as follows:

"1. That it was for the jury to determine whether the plaintiffs gave Crowell authority beforehand to make such a contract. 2. That if they did, his contract bound the plaintiffs. 3. That it was for the jury to determine whether the plaintiffs retestified the contract of Crowell to take the note of George B. James & Co., if he made it. 4. That if the contract was to deliver the coal to the carrier in New York and from that time to be at the risk of the defendants, the contract was to be interpreted by the law of New York; but that if the contract of the plaintiffs was to deliver the coal in Portland, it was not. But whether the sale of the coal was coupled by a delivery of it in New York or in Portland, would not necessarily be conclusive of the question as to the place where the payment was by the terms of the contract to be made, which was to be determined upon all the evidence in the case. 5. That under the law of Massachusetts the giving a note of a third person by the purchaser to the seller is prima facie payment of a preexisting debt. 6. That the unwritten or common law of New York may be proved by parol evidence or by the books of reports of cases adjudged in the courts of that state, and the plaintiffs' counsel has read in evidence a case from the...