Kelley v. Thomas G. Plant Co.

• Decision Date: 07 January 1931
• Parties: KELLEY v. THOMAS G. PLANT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 102

174 N.E. 224

KELLEY

v.THOMAS G. PLANT CO.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 7, 1931.

Exceptions from Superior Court, Essex County; Franklin T. Hammond, Judge.

Action by Thomas A. Kelley against the Thomas G. Plant Company. Verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.

R. L. Sisk, of Lynn, for plaintiff.

W. T. Snow, of Boston, for defendant.

CARROLL, J.

This action is in tort for the conversion of two lots of leather. The first count in the declaration alleges that one hundred and eighty dozen black kid skins were delivered to the defendant on March 11, 1918; the second count states that one hundred and ten dozen black kid skins were delivered to the defendant on May 6, 1918. The writ is dated October 15, 1927. The answer was a general denial and the statute of limitations. G. L. c. 260. The case is before us on the plaintiff's exceptions.

The plaintiff, a tanner of kid skins, from 1915 to 1924 sold to the defendant, a shoe manufacturer, each year an average of $250,000 worth of leather through the plaintiff's selling agents, Rousmanier, Williams & Company. In the year 1918 the defendant ‘was purchasing mostly brown or colored skins.’ The plaintiff testified that Brown, the defendant's purchasing agent, talked with him ‘about getting some black kid skins' which the plaintiff ‘wanted to sell the defendant’; that ‘he wanted some samples to submit to the defendant’; that on March 11, 1918, he shipped to the defendant one hundred and eighty dozen black kid skins and on May 6, 1918, one hundred and ten dozen skins of the same quality ‘to order from’; that the skins ‘were just like all other kid skins handled by the plaintiff and which he was selling to his customers in the regular course of business'; that the goods were sent to the defendant ‘in the hope that * * * their buyer * * * would find them satisfactory and order that type of goods.’

The defendant admitted receiving the March shipment, but denied that it received the second lot. The trial judge excluded several offers of evidence tending to show the receipt of the second shipment; the plaintiff excepted. The only evidence tending to show what became of the skins after shipment was the statement of the defendant's purchasing agent that ‘he believed the first lot of leather was cut up shortly after it was received.’ The plaintiff offered to show by oral testimony the contents of a letter indicating that on December 9, 1926, a demand was made on the defendant for the return of the goods. There was evidence that in September, 1928, the plaintiff gave the defendant notice ‘of the present claim * * * as to the second lot.’ It was agreed that on October 13, 1927, a written demand was made on the defendant for the return of the goods.

Assuming that all the goods were received by the defendant in March and May, 1918, that written demands for the return were made in December, 1926, and September, 1928, the plaintiff cannot recover in this action of tort. He desired to sell the leather to the defendant; it was similar to the material sold to his customers in the regular course of business. The defendant was not restricted to an inspection and return, it received them as a prospective buyer and it was ‘the hope’ of the plaintiff that the defendant ‘would find them satisfactory and order that type of goods.’ The transaction is governed by the Sales Act, G. L. c. 106, § 21, rule 3(2), which is in these words: ‘When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the propertytherein passes to the buyer-(a) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction. (b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, or, if no...