Irving Tanning Co., Inc. v. Shir

• Decision Date: 11 September 1936
• Parties: IRVING TANNING CO., Inc., v. SHIR et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 380

3 N.E.2d 841

IRVING TANNING CO., Inc., v. SHIR et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 11, 1936

Exceptions from Superior Court, Suffolk County; Goldberg, Judge.

Action of contract by Irving Tanning Company, Incorporated, against Benjamin Shir and another. Judgment for plaintiff for $977.45, and defendants bring exceptions.

Exceptions overruled.

A. L Sherin, of Boston, for plaintiff.

J. C Johnston, of Boston, for defendants.

QUA Justice.

The plaintiff, a tanner of leather with an office in Boston seeks to recover the purchase price of three shipments of tanned white sheepskins claimed to have been ordered by the defendants in April, 1934. The skins in each instance were shipped by the plaintiff to the Indian Head Shoe Company, which operated a shoe factory at Nashua, New Hampshire. The defenses now insisted upon are a general denial and the statute of frauds.

For about a year before the shipments the Indian Head Shoe Company had sold substantially its entire output to the defendants, who were wholesalers in Boston, doing business under the name of ‘ Benjamin Shir.’ Because of the financial condition of the Indian Head Shoe Company and in order to enable it to secure materials for the manufactue of shoes to be delivered to the defendants, the latter had promised to pay material men the price of materials delivered by them to that company. On each of the three occasions in question the Indian Head Shoe Company ordered skins from the plaintiff. There was evidence that upon receipt of the first order the plaintiff's office manager called the defendants' telephone number as it appeared in the telephone directory and asked for the defendants' bookkeeper; that a woman answered; that the plaintiff's manager told the woman that the plaintiff could not ship to the Indian Head Shoe Company because that company was not ‘ rated,’ but that the plaintiff ‘ would ship to the Indian Head ‘ if Benjamin Shir would pay the bill’ '; that after waiting a time at the telephone, the plaintiff's manager was told ‘ that the shipment would go thought’ and to send the bill to the defendants; that upon receipt of the second order the plaintiff's manager made a similar telephone call, asked for the bookkeeper, and had a conversation with the woman answering the telephone which was practically a repetition of the first conversation; that the plaintiff's manager asked if it would ‘ be all right to ship and charge the bill to them [the defendants] as before,’ and was told by the woman to make the shipment as usual; that upon the third occasion the plaintiff's manager called on the telephone for the bookkeeper, asked in substance whether it was ‘ all right’ to ship, held the line ‘ for some time’ and then was told to make the shipment and to send the bill to the defendants. On each occasion the plaintiff, on its books of account, charged the price of the shipment to the defendants and sent to the defendants an invoice wherein the goods were described as sold to the defendants.

We think it quite plain that if the defendants were bound by the telephone conversations, the evidence will support a finding that by the understanding of the parties, the plaintiff shipped the goods to the Indian Head Shoe Company on the sole credit of the defendants, and that the defendants became liable to pay the price on an original undertaking of their own to which the statute of frauds is not a defense. Cahill v. Bigelow, 18 Pick. 369; Swift v. Pierce, 13 Allen, 136; Dean v. Tallman, 105 Mass. 443; Barrett v. McHugh, 128 Mass. 165; Hammond Coal Co., Inc., v. Lewis, 248 Mass. 499, 143 N.E. 309; Colpitts v. L. C. Fisher Co., 289 Mass. 232, 193 N.E. 833.

The principal questions in the case are whether the evidence of the telephone conversations was admissible at all and whether, if it was admissible, a finding could properly be made that the woman who answered at the defendants' telephone had authority to bind the defendants. These questions are closely related. Further evidence bearing...