Fullam v. Wright & Colton Wire Cloth Co.

• Decision Date: 26 November 1907
• Citation: Fullam v. Wright & Colton Wire Cloth Co., 196 Mass. 474, 82 N.E. 711 (Mass. 1907)
• Parties: FULLAM et al. v. WRIGHT & COLTON WIRE CLOTH CO.
• Court: Supreme Judicial Court of Massachusetts

196 Mass. 474

82 N.E. 711

FULLAM et al. v. WRIGHT & COLTON WIRE CLOTH CO.

Supreme Judicial Court of Massachusetts, Worcester.

November 26, 1907

COUNSEL

Webster Thayer, Jere R. Kane, Hollis W. Cobb, and Fred A. Walker, for plaintiffs.

Charles M. Thayer and Roy F. Gilkeson, for defendant.

OPINION

BRALEY J.

If the defendant had the right to repudiate the purchase, because the wood tendered did not correspond with the description under which it was sold, the judgment in its favor must be affirmed. The sale was of the whole quantity, at an agreed price, and hence constituted but one indivisible bargain although the delivery was to be by car loads instead of in bulk until all had been delivered. Miner v. Bradley, 22 Pick. 457; Clark v. Baker, 5 Metc. 452; Young v. Wakefield, 121 Mass. 91; Roosevelt v Doherty, 129 Mass. 301, 37 Am. Rep. 356; Barrie v Earle, 143 Mass. 1, 8 N.E. 639, 58 Am. Rep. 126; Stewart v. Thayer, 168 Mass. 519, 47 N.E. 420, 60 Am. St. Rep. 407; Tripp v. Smith, 180 Mass. 122, 61 N.E. 804; Providence Coal Co. v. Coxe, 19 R.I. 381 35 A. 510; Wooten v. Walters, 110 N.C. 256, 14 S.E. 734, 736; Mersey Steel & Iron Co. v. Naylor (1884) 9 A. C. 434. But if entire, the contract expressly called for all the wood to be 'largely chestnut, some hardwood, pine, and popular,' and this statement must be treated as descriptive of the subject-matter, and is to be regarded as a warranty of the kind and quality. In the performance of their promise the plaintiffs therefore were required to deliver wood in conformity with the description. Henshaw v. Robins, 9 Metc. 83, 43 Am. Dec. 367; Gossler v. Eagle Sugar Refining Co., 103 Mass. 331; Harrington v. Smith, 138 Mass. 92; Bowes v. Shand, 2 A. C. 445; Filley v. Pope, 115 U.S. 213, 6 S.Ct. 19, 29 L.Ed. 372. It appears from the auditor's findings that when they accepted the defendant's order the plaintiffs had purchased enough wood which in quantity, variety and quality was more than sufficient to enable them to fulfill their contract. But being on the lot where the various kinds had been cut and corded in separate piles, upon carting it to the cars for shipment, no attempt was made to load each car according to the required assortment. In consequence of this failure the cars forwarded were filled largely with pine, among which was mingled a small amount of chestnut and birch. These consignments the defendant refused to accept, because the wood had not been delivered in the required proportions, and repudiated the entire purchase. It is the contention of the plaintiffs that, if it had been possible to transport the whole at once to the defendant's factory, this would have been a sufficient delivery, even if the several varieties had not been proportionately commingled. See Wolf v. Boston Veneer Box Co., 109 Mass. 68. And as transportation by separate car loads was the only feasible way, as well as in accordance with the manner of shipment under the terms of the contract, the defendants were not justified in their refusal to accept, if the wood placed on the cars was not properly assorted. The consideration however, was entire, even if the plaintiffs were to be paid each week for the number of cords shipped, and whether each car load called for a complete delivery according to the description depends upon the construction given to the contract. It is settled that having been reduced to writing, while the order and acceptance cannot be varied or enlarged by oral evidence, yet the situation of the parties may be considered to ascertain their intention and the meaning of the language used. Bancroft v. Abbot, 3 Allen, 524, 526; Keller v. Webb, 125 Mass. 88, 28 Am. Rep. 209; Adams v. Morgan, 150 Mass. 143, 22 N.E. 708; Bassett v. Rogers, 162 Mass. 47, 37 N.E. 772; Lynn Safe Deposit & Trust Co. v. Andrews, 180 Mass. 527, 533, 62 N.E. 1061; Callender, McAusland & Troup Co. v. Flint, 187 Mass. 104, 72 N.E. 345; Buffinton v. McNally, 192 Mass. 198, 78 N.E. 309; De Friest v. Bradley, 192 Mass. 346, 352, 353, 78 N.E. 467; American Malting Co. v. Souther Brewing Co., 194 Mass. 89, 80 N.E. 526; Smith v. Vose & Sons Piano Co., 194 Mass. 193, 80 N.E. 527, 9 L. R. A. (N. S.) 966. It is expressly found that because of a strike at the coal mines the defendant, becoming apprehensive that it might be unable to obtain soft coal which it had been accustomed to use in its annealing furnaces, and for making steam, contracted with the plaintiffs, who knew of these uses, for a supply of cordwood as a substitute. In...