John B. Frey Co. v. S. Silk, Inc.

• Decision Date: 06 June 1923
• Citation: 140 N.E. 259,245 Mass. 534
• Parties: JOHN B. FREY CO., Inc., v. S. SILK, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 534

140 N.E. 259

JOHN B. FREY CO., Inc.,

v.S. SILK, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

June 6, 1923.

Exceptions from Supreme Judicial Court, Suffolk County.

Action by the John B. Frey Company, Inc., against S. Silk, Inc., to recover the purchase price of a carload of beets. Verdict for defendant, and plaintiff brings exceptions, and petitions for establishment of exceptions disallowed by the trial judge. Bill of exceptions established, and exceptions sustained.Hale & Dorr, of Boston (R. W. Hale and V. C. Brink, both of Boston, of counsel), for plaintiff.

Nathan Ullian and Stanley A. Dearborn, both of Boston, for defendant.

RUGG, C. J.

This is a petition to establish exceptions. The trial judge disallowed the exceptions on the ground that the entire charge to the jury was reasonably necessary as a part of the record in order to set forth the truth with respect to the rulings to which exceptions were taken. An examination of the exceptions filed, together with the copy of the entire charge attached to the petition, shows that there was error in the disallowance. The exceptions present in succinct form the questions of law actually raised at the trial. Enough of the charge was set forth to make these questions clear. A bill of exceptions ought to state with conciseness and clarity the points of law actually raised, with sufficient evidence to enable this court to decide with understanding whether the substantial rights of the parties have been injuriously affected in the light of the issues and the course of the trial. They ought not to be incumbered and obscured by irrelevant and unnecessary matter. The bill of exceptions as filed was a commendable and successful attempt to comply with this principle of practice, which has been enforced and exemplified in numerous decisions. It is important in the interests both of justice and economy. Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 215 Mass. 381, 387, 102 N. E. 625;Isenbeck v. Burroughs, 217 Mass. 537, 105 N. E. 595;Romana v. Boston Elevated R. Co., 218 Mass. 76, 81, 105 N. E. 598, L. R. A. 1915A, 510, Ann. Cas. 1917A, 893;Corsick v. Boston Elevated R. Co., 218 Mass. 144, 105 N. E. 600;Taylor v. Pierce Bros., Ltd., 219 Mass. 187, 106 N. E. 565;Rosen, Petitioner, 236 Mass. 321, 128 N. E. 413. The petition is granted. The bill of exceptions as disallowed is established. Moneyweight Scale Co., Petitioner, 225 Mass. 473, 114 N. E. 741.

The plaintiff seeks to recover the purchase price of a carload of beets sold by it to the defendant. There was evidence tending to show that the order of the defendant to one Pratt then in the state of New York was a telegram dated January 10, 1920: ‘Buy three or more beets for me and get as late delivery as possible.’ The carload here in question was bought by Pratt of one McKuen, who was an agent for the plaintiff. It was an entire lot of beets stored in Sodus Cold Storage, at Sodus, N. Y. The terms were $3 per sack f. o. b. Sodus. The beets were sold for prompt shipment, but the plaintiff held them at the request of Pratt, first until the next week, Pratt promising to send check for the beets, and then until February 18, 1920, when they were shipped. Pratt said in the meantime that McKuen need not worry as the beets belonged to the defendant. The car arrived in Boston February 29, 1920, when it is agreed that the beets were not merchantable. The invoice to the defendant contained the words: ‘Car No. A. R. T. 25292. Loaded at Sodus, New York, via B. & A. Dely. * * * allow inspection.’ At the time of shipment the plaintiff drew on the defendant by draft, which read in part: ‘At sight, hold for arrival of car A. R. T. 25292, pay to the order of. * * *’ There was also a freight bill on which were the words, ‘Inspection allowed.’ There was evidence from a qualified expert in the trade in Boston to the effect that it was a custom known throughout the vegetable trade to allow inspection ‘at the delivery end, * * * to see if the goods are as contracted for both as to quantity and quality.’

Issues at the trial were whether the beets were merchantable at the time of sale and whether they were or became unmerchantable while they were at the risk of the plaintiff, or after that risk had passed to the defendant. The settlement of these issues depended in part upon the question when title passed, or was to pass, under the contract of sale from seller to buyer.

In various forms of words the plaintiff asked for a binding instruction to the jury that title to the beets passed to the defendant at the time of the contract of sale. These requests were denied. Instructions were given in substance that the question was whether it was the agreement of the parties that title should pass when the beets were put on the car for shipment by rail to the defendant, or after the defendant had inspected them on arrival in Boston with the right to reject them if ‘not up to standard.’ The jury thus were not permitted to find that the title passed at the time of contract.

[3] The meaning, force, and effect of this contract would ordinarily be ascertained according to the law of the state of New York, where it was made. Kline v. Baker, 99 Mass. 258. That law is a fact and must be proved like any other fact. The court cannot take cognizance of the law of a foreign state in the absence of evidence. No evidence was introduced as to the law upon this subject in the state of New York. Therefore the case must be decided in accordance with the common law of this commonwealth because the common law of a sister state is presumed in the absence of evidence to be the same as that of this commonwealth. Royle v. Worcester Buick Co., 243 Mass. 143, 146, 137 N. E. 531. There is no presumption that the law of another state corresponds with a statute of this commonwealth. Murphy v. Collins, 121 Mass. 6.

[6] The common law of this commonwealth is, as was said by Chief Justice Gray in Sherwin v. Mudge, 127 Mass. 547, 549:

‘By a contract for the sale of specific goods, the title doubtless passes as between the parties, without any actual or constructive delivery, or payment of the price, unless it can be shown that their intention is different.’

See Parsons v. Dickinson, 11 Pick. 352, 354;Folsom v. Cornell, 150 Mass. 115, 22 N. E. 705;Mitchell v. LeClair, 165 Mass. 308, 43 N. E. 117;Wesoloski v. Wysoski, 186 Mass. 495, 71 N. E. 982;Bristol Mfg. Co. v. Arkwright Mills, 213 Mass. 172, 100 N. E. 55.

The rule of the common law is embodied in the Sales Act (G. L. c. 106, § 21, rule 1), where it is phrased in these words:

‘If there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contractis made, and it is immaterial whether the time of payment or the time of delivery or both, be postponed.’

[7][8] The evidence in the case at bar appears to have been undisputed that the negotiations between these parties related to an entire lot of beets on storage. They were thus specific, defined and separated goods, ready for delivery. Their shipment might have been found to have been delayed solely for the convenience of the defendant. In this connection it might also have been found that Pratt was the agent of the defendant in the transaction, although that was for the jury in view of conflicting evidence.

It follows that the jury ought to have been permitted to find on all the evidence that the title passed at the time the contract was made. An unqualified instruction to the effect that it did so pass could not have been given. There was the...