Hopcraft v. Kittredge

• Decision Date: 23 June 1894
• Citation: 162 Mass. 1,37 N.E. 768
• Parties: HOPCRAFT v. KITTREDGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 1

37 N.E. 768

HOPCRAFT v. KITTREDGE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1894

This was an action of contract brought by the plaintiff, who was a manufacturer of advertising show cards in New York, against the defendants, who were wholesale dealers in cigars in Boston, to recover damages from the defendants for their refusal to order, receive, and pay for 100,000 advertising cards. Said cards were of two kinds called, respectively, "Golden Cloud," and "Council Brand," upon each of which there was a sketch or picture, the names of two brands of cigars to wit, "Golden Cloud" and "Council Brand," and the prices of said cigars. Said cards were intended to be put in boxes of cigars exhibited in retail stores, for the purpose of advertising said brands of cigars. There was evidence tending to show that one John F. Slade who was the traveling salesman and soliciting agent of the plaintiff, and who had authority to procure orders and sell goods, subject to the approval of the plaintiff, on or about May 29, 1888, called upon the defendants, in Boston, to solicit them to purchase some of plaintiff's advertising cards. An order for goods, subject to approval, was thereupon drawn up by the said Slade, and signed by the defendant, and handed to the said Slade, and forwarded by him to the plaintiff. There was evidence tending to show that thereupon the plaintiff caused dies to be engraved, and proofs of cards were sent to the defendants, and the plaintiff purchased cardboard, and cut the same into the required sizes, beveled and gilded the said cards, and printed 1,000 of each of said kinds of cards, and delivered the same to the defendants on or before July 9, 1888. John F. Slade testified that, shortly after the delivery of said 2,000 cards, he called on the defendants, in Boston, and inquired whether or not the said 2,000 cards were satisfactory, and was informed by Mr Kittredge that the said cards were satisfactory, and were all right. He further testified that some time about the last of July, 1888, he again called upon the defendants, and requested them to give an order for the rest of the cards that Mr. W.P. Kittredge then stated to him that he (Mr. Kittredge) was going out of town for a short time, and upon his return would attend to the matter and give an order for the balance of the cards. Both defendants testified that on each occasion Mr. W.P. Kittredge told the said Slade that the said 2,000 cards would not answer at all; that they were too large; that the trade would not take them; that the cards covered up the cigars in the boxes, and were useless, and that he would not approve them; that they would try to get their customers to use them, and would push the cards with that purpose. It was admitted that after the receipt by the defendants of the first 2,000 cards the defendants used some of said cards by placing them in the boxes of cigars which they sent or sold to their customers, and that none of said cards were either returned to plaintiff, or paid for. There was conflicting evidence whether the defendants offered to return the unused portion of said cards. Both defendants testified that such use of the cards was with the knowledge and consent of the said Slade. There was evidence that the plaintiff was at all times in readiness to manufacture and deliver to the defendants the balance of the 100,000 cards. At the close of the evidence the defendants asked for the following instructions: "First. The letter of May 29th is no contract, unless accepted in writing. There is no such acceptance in the evidence, and the plaintiff cannot recover. Second. There is no evidence of delivery of part of the goods, or sample of goods, agreed upon, sufficient to take it out of the statute of frauds. Third. That there is no approval of the cards, sufficient to make the defendants liable, in the correspondence introduced. Fourth. That if the jury shall find that the defendant did not approve of the 2,000, in conversation, their verdict must be for the defendant. Fifth. That it is for the jury to say, under all the circumstances and testimony, whether the letter of July 6th, from the defendant to plaintiff, meant to approve the 2,000 under the terms of the order; that the letter of July 6th, in and of itself, is not an approval of the Council Brand. Sixth. That there is no approval of the Golden Cloud 1,000 in any of the letters, or of Council Brand 1,000. Seventh. That an approval of the sketch, or an approval of the proof, is not such approval as would bind the defendant, or make him liable. Eighth. That, in order to hold the defendant, there must be a tender of the goods ordered to the defendant."

COUNSEL

Edwin B. Hale and William M. Richardson, for plaintiff.

L.M. Child and A. Hemenway, for defendants.

OPINION

MORTON J.

Most of the exceptions that were taken to the refusal of the presiding justice to instruct the jury as requested by the defendants have not been argued by them, and we therefore treat them as waived. Of the others, it may be said generally, that they dealt with partial views of the testimony, and were properly refused. The third and ...