King v. Faist

• Decision Date: 28 May 1894
• Parties: KING v. FAIST et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 449

37 N.E. 456

KING v. FAIST et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1894

COUNSEL

Samuel L. Powers and Russell A. Sears, for plaintiff.

W.M Stockbridge and F.J. Hutchinson, for defendants.

OPINION

BARKER J.

The plaintiff was a flour merchant, doing business in Boston, and the defendants were manufacturers of flour at Milwaukee selling it in Boston through their agent, one Bronson. The plaintiff and Bronson were members of the Boston Chamber of Commerce, and their dealings were made under the usages and rules of the chamber, according to which, on sales of flour for shipment from a mill, the purchaser's reasonable time for ordering the mill to ship, or for "ordering out," the flour, was 14 days from the date of purchase and shipment in 14 days from the receipt of shipping directions at the mill constituted "prompt shipment," and in seven days, "immediate shipment." Before February 27, 1890, the plaintiff had made purchases from the defendants, as to the last of which there was then pending a dispute, the plaintiff claiming damages for the poor quality of some flour delivered on a contract for 2,000 barrels, of which 2 car loads--300 barrels--had not yet come forward. On February 27th, the plaintiff and Bronson made an oral agreement for the settlement of the dispute, and for a further purchase and sale of flour, by which the defendants sold to the plaintiff 1,000 barrels of their La Rose patent flour at $4.65 per barrel, delivered at Boston points, the quality to be of standard grade, fully equal to any ever received by him from them, and to be "ordered out" by him within a reasonable time, and in such lots of one or more cars as he might require, the sale to be in full settlement of the dispute also; and the terms of payment to be either demand drafts, with bills of lading "to order," meaning as we infer from the statement of the case in the plaintiff's brief and a letter of February 28th, drafts which the plaintiff should not be called upon to honor until he accepted the flour on which they were drawn; or drafts payable on examination or arrival of the flour, Bronson's decision on its inspection and test to be final; or demand drafts for 25 cents per barrel less than the agreed price, the margin to be remitted as fast as each car should be received and found satisfactory; the defendants to adopt that one of the three methods which they preferred, but to select one of them, and Bronson to report to the plaintiff the method selected. A written instrument, intended by the plaintiff and Bronson to be a memorandum of this verbal agreement, was made on the same day, and was signed by Bronson, and delivered by him to the plaintiff. It is in the form of a letter from Bronson to the plaintiff, beginning with the statement, "I have this day sold you for account Faist, Kraus & Co.," and contains the terms of the oral bargain, except that the third option as to the mode of drawing against shipments was omitted from the memorandum by mistake. This instrument is set out by copy as part of the plaintiff's declaration, and his action is founded upon it as a written contract between himself and the defendants for the sale and delivery to him of 1,000 barrels of flour, which he alleges that he, within a reasonable time after the making of the contract, ordered them to ship, and which they have without valid reason or excuse refused or neglected to deliver. The answer does not set up the statute of frauds, but denies the plaintiff's allegations, and alleges that, after the contract was made, the plaintiff notified them that he renounced and would not perform the same, and that they thereupon rescinded the contract, and notified him that they would not perform its obligations. Bronson, having on February 27th wired the defendants that he had sold the plaintiff 1,000 barrels at $4.65, wrote them on the next day, stating the terms of the oral bargain, and adding that, as soon as they should say which method of drawing the defendants would follow, instructions for the two car loads not yet sent under the old contract would go forward, and instructions for the 1,000 barrels would follow in due course. On March 3d, the defendants, in reply to this letter, wrote Bronson: "Now, about King's 1,000 barrels. We can't recognize any claim from W.S. King & Co., and your limit was for $4.75. Will fill the order under the following conditions, which you may accept or not. No commission, and leaving no margin of 25 cents per barrel, but mail you to-day samples of our last run of patent, taken from a barrel of which we have about 1,200 barrels piled up in our warehouse, which, if accept, will keep for Messrs. King & Co., provided the flour suits them. We guaranty flour all up to this sample, but won't guaranty the way you say in your favor, 'as any ever sent.' *** Terms the same as before, and demand draft; 1/2% off, and flour has to be taken out inside of six weeks, or to name a day, say up to April 15th. Please see King about this, and, if he is willing to accept our conditions, will ship the flour." On receipt of this letter, Bronson showed it to the plaintiff, who at first insisted upon the terms of the oral agreement, but finally assented to the terms proposed. About March 15th a car load of flour, sent under the contract for 2,000 barrels, arrived at Boston, and was inspected for the plaintiff by an inspector, who brought him what purported to be a sample, of poor quality. At this time the final car load under the same contract had been shipped from the mill to Fitchburg, and, as the plaintiff was informed, on the same day with the Boston car load. He had paid for the latter, and, assuming that it was of poor quality, on March 15th he wrote to the defendants, "We have your invoice for the Lowell car, but before we pay any more drafts we want some assurance from you that you will make good any claims on account of quality. The last car in here we think very poor flour,--very short and soft. We sent for sample at Beverly just in. This is very good body, and must have been made from very different stock. We find the Fitchburg car was shipped same day as Boston, so we expect trouble there, and have sent for sample. We want 1,000 bbls. of good flour on our recent purchase, and must have good flour. Shall we express a sample of this car to you?" The draft for the car load then in transit to Fitchburg arrived in Boston on March 16th or 17th, and thereupon the plaintiff asked Bronson to give his personal guaranty to protect him in case he paid the draft, and the Fitchburg car load should be found deficient in quality. This Bronson refused to give, and on March 17th the plaintiff refused to pay the draft, and also told Bronson that he would not pay any future drafts without some guaranty to protect him in case the flour should on arrival prove deficient in quality; and the defendants, upon learning that the plaintiff had refused to pay the draft, diverted the Fitchburg car load, and it has never been delivered to the plaintiff. On March 18th the plaintiff wrote the defendants a letter in which, after stating that he had received a sample from the Fitchburg car "not poor enough to make any claim on," he adds: "We declined to pay your draft yesterday because your agent, Mr. Bronson, refused to protect us on the quality of this flour if it was not right. We are rather surprised that we have not had any reply from Mr. Bronson in regard to this car to Boston. If you will kindly send us some guaranty that you will make right what flour you ship us that is not right, and let us know what proof you require, we would like to have you do so. Our Mr. King will be away for the balance of the week, and on his return we will want to order out probably a large part of the last 1,000 barrels, and wish to have something definite in regard to it during the week. If you wish for a sample of the car of flour here, which in our judgment is way off, Mr. Bronson can have sample drawn from this car any time. It still remains unsold, and we await your advice as to disposal." On March 22d the defendants acknowledged the receipt of the letters of March 15th and 18th, adding: "Regarding the quality of late shipments, will say the car load to Fitchburg and the one we forwarded the same date to Boston must have been the same flour, because it was made on the same run and taken from one pile in the warehouse, and fully as good as any previous shipments. Was more than astonished to learn that you let our draft go back unpaid. To avoid this in future, you must name us some good standing bank, who guaranty us the payment of your drafts, before we can ship any more flour to you." On March 25th the plaintiff replied by a letter in which, after stating that he will forward samples of the Boston, Beverly, and Fitchburg car loads, and suggesting that the Boston car load was of export grade, sent by the defendants' mistake, he adds: "We will give you the name of a bank if you wish, and will so ship, who will guaranty payment of your drafts on arrival and examination of flour; but we cannot pay more drafts without some guaranty as to quality, especially when you are so positive that the flour is the same when it is so easy to see that it is not. We may not be able to send the samples to-night, but will tomorrow; and we trust when you see them and give them your attention you will acknowledge that it is as we have written about, make it good, and ship us good flour on our last purchase of 1,000 barrels. Would like to order some out at once, but would like to get this matter adjusted first, and think when you see the samples you will...