Kelley v. Thompson

• Decision Date: 02 March 1900
• Citation: 175 Mass. 427,56 N.E. 713
• Parties: KELLEY v. THOMPSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 427

56 N.E. 713

KELLEY v. THOMPSON.

Supreme Judicial Court of Massachusetts, Essex.

March 2, 1900

COUNSEL

Wiggin & Fernald, for plaintiff.

Peters & Cole, for defendant.

OPINION

LORING J.

On October 1, 1892, the plaintiff, who was a farmer having a herd of cows, 'and also the owner of a milk route,' sold to the defendant his good will in the milk route, and certain personal property used in connection with it, for $600. The defendant paid $100 of the $600 in case, and gave his note for the other $500, payable in two years from that date, with interest at 6 per cent. per annum. At the same time the defendant agreed to purchase from the plaintiff all his milk at the rate of 28 cents a can. No time was fixed during which the defendant should take the plaintiff's milk, but in fact 'the defendant continued to take the plaintiff's milk, and pay therefor the price of twenty-eight cents per can, from the time of purchasing said route until April 1, 1895, and afterwards, for the six winter months, at the rate of twenty-eight cents, and the six summer months at the rate of twenty-four cents. Monthly bills were rendered by the plaintiff to the defendant for the milk purchased, which were paid by the defendant, and receipted by the plaintiff. Interest on the note was paid yearly up to and including October 1, 1896.' This suit was brought to collect the amount of the note, with interest from October 1 1896, and a balance due from the plaintiff for milk sold by the plaintiff to the defendant during the five months from April 1 to September 1, 1895, inclusive. The plaintiff died after the bringing of the suit, and the executor of his will was admitted to prosecute. The defendant pleaded a general issue and payment, and also filed a declaration in set-off in which he counted on an account annexed, including, among other items, the following; 'To discount on milk, at four cents per can, $381.68.' To the declaration in set-off the plaintiff pleaded the general issue and the statute of frauds. The only item in controversy between the plaintiff and the defendant was this item of the declaration in set-off, amounting to $381.68. The defendant was allowed to prove that, as part of the agreement of sale of the milk route, 'it was orally agreed between him and the plaintiff that at the settlement of said note a discount of four cents a can should be made by the plaintiff to the defendant on all milk purchased by him subsequent to the date of the note for which he had paid at the rate of twenty-eight cents a can, and that said discount should be applied upon said notes'; 'that he was to pay interest upon the entire amount of the note until the note was settled'; and 'that the allowance of four cents per can on the milk purchased by him at the rate of twenty-eight cents per can was to be made upon the note at the time the note was settled.' The oral agreement testified to by the defendant was not an agreement as to the price of the milk which the defendant was to buy of the plaintiff. It was admitted by the defendant that the agreement was that the price of the milk was 28 cents a can and monthly bills were rendered by the plaintiff to the defendant at that price, and paid by the defendant. The agreement testified to was that when the note was settled the plaintiff should allow a discount of 4 cents a can on all milk for which the...