Plaintiff's
declaration was in the count, and, as originally drawn
declared on a contract in writing, alleging that defendant by
its general manager, William H. Mack, on September 26, 1899
made an offer in writing to plaintiff, and that plaintiff
accepted the offer in writing, which offer and acceptance
were as follows:
'Boston
Sept. 26, 1899. Messrs. Walter, Friend & Co., Boston
Mass.--Dear Sirs: We will agree to furnish four or five
barges that will insure cargoes at a satisfactory rate and
carry not less than 8,000 tons of coal and a first-class
tugboat of not less than 1,000 H. P. to tow these or other
barges, our option of substituting one or more barges for
others, without inconvenience to charterers, to carry coal
from New York, Philadelphia, Newport News, Norfolk, or
Baltimore to Boston, beginning before November 1, and
continuing until May 1, 1900. The price per day for the
above tug and barges to be $225, to be divided
proportionally; charterers to load, trim and discharge all
cargoes and furnish the tug with bunker coal at their
expense. Tug to be at all times at the service of
charterers to do whatever towing they may required, in
addition to towing the above barges. Very truly yours
[Signed] Wm. H. Mack, Manager.'
The
acceptance was as follows:
'Messrs.
Walter, Friend & Co., Boston, Mass.--Dear Sirs: We herewith
accept your offer to furnish us with four or five barges that
will insure cargoes at satisfactory rate and carry not less
than 8,000 tons of coal, and also a first-class towboat of
not less than 1,000 horse power, to carry coal for us from
November 1, 1899, to May 1, 1900, from New York,
Philadelphia, Newport News, Norfolk and Baltimore to Boston.
All the above as per conditions and terms named in option to
you from W. H. Mack, Manager, dated September 26, 1899. The
above to be subject to usual conditions of charter. Yours
truly, Metropolitan Coal Co., by Edward Hamlin,
President.'
On this
declaration plaintiff went to trial before Mason, C.J.,
sitting without a jury, who found for plaintiff in the sum of
$50,000. At the close of the trial the defendant asked the
court to rule that on the evidence no contract had been
established between the plaintiff and defendant as declared
on, and that the purported acceptance dated September 28,
1899, by the Metropolitan Coal Company was not in the same
terms as the offer and did not constitute a valid acceptance
thereof. The court refused these rulings and ruled that the
trivial variation in language was waived. To these refusals
to rule, defendant excepted. These exceptions were sustained
and the finding for plaintiff set aside. Metropolitan
Coal Co. v. Boutell Transportation & Towing Co., 185
Mass. 391, 70 N.E. 421. After the decision plaintiff amended
its declaration by striking out the letter of the
Metropolitan Coal Company as its acceptance in writing of
plaintiff's offer and substituted a letter of Walter,
Friend & Co. to Mack, which was as follows:
'Boston,
Sept. 28, 1899. Wm. H. Mack, Manager, Boston, Mass.--Dear
Sir: Your offer made to us to furnish four or five barges and
a tug to transport not less than 8,000 tons of coal from New
York, Norfolk, Newport News and Baltimore to Boston from
November 1st or earlier to May 1st has been accepted by the
Metropolitan Coal Co. to whom we made the offer in accordance
with your offer to use, at $225 per day, they to load, trim
and discharge cargoes and furnish and pay for bunker coal for
the tug. Very truly yours, Walter, Friend & Co.'
To this
amended declaration defendant filed a general denial and
special pleas that if defendant ever made to plaintiff the
offer alleged in the amended declaration, plaintiff, prior to
acceptance, rejected it and that the offer was recalled
before any acceptance; that if plaintiff ever had the right
to rely on the letter of Walter, Friend & Co. to defendant as
an acceptance, it had waived such right of action. Defendant
also alleged an election on plaintiff's part to base its
claim on the letter written by itself to Walter, Friend & Co., which was inconsistent with the letter written by
Walter, inconsistent with to defendant. The rulings requested
by defendant are as follows:
'First.
That on all the evidence no contract has been established
between the plaintiff and the defendant in manner and form as
declared on and the plaintiff cannot recover in this
action.'
This
ruling was refused by the court, to which refusal the
defendant duly expected.
'Second.
That the plaintiff having, prior to the amendment of its
declaration in this action, brought suit upon its letter of
September 28th as its acceptance, and having relied in the
trial of said action on said letter and on proof of a waiver
of the variation between Mack's offer and said acceptance
is bound by its election to stand on said letter constituting
in law a rejection of Mack's original offer and cannot
stand on Friend's letter of September 28th as its
acceptance of said offer.'
This
ruling was refused by the court, to which refusal the
defendant duly excepted.
'Third.
That Friend's letter of September 28th does not
constitute in law a sufficient acceptance in behalf of the
Metropolitan Coal Company of the offer declared on.'
This
ruling was refused by the court, to which refusal the
defendant duly excepted.
'Fourth.
That Friend's letter of September 28th is not in the same
terms as the offer declared on and does not constitute a
valid acceptance thereof.'
This
ruling was refused by the court, to which refusal the
defendant duly excepted.
'Fifth.
That on the evidence Friend's relation to Mack and the
defendant, if the defendant was Mack's principal in the
transaction, was such that he owed a duty to Mack and the
defendant to correctly transmit any acceptance which he had
received from the Metropolitan Coal Company and that he was
thereby precluded from acting in behalf of the plaintiff in
any incorrect transmission of its acceptance.'
To this
ruling the court said: 'Yes, as a general proposition;
and I apply it to the facts found by me.' The defendant
duly excepted to the ruling of the court that on the
application of this rule of law to the evidence the plaintiff
was entitled to recover.
'Sixth.
That if the letter of Friend of September 28th meets in terms
the offer for a service to begin before November 1st, it does
not correctly transmit the acceptance of the Metropolitan
Coal Company of September 28th and the plaintiff is precluded
from availing itself of said letter of Friend as its
acceptance by reason of the duty of said Friend to Mack and
the defendant to correctly transmit Metropolitan Coal
Company's acceptance.'
To this
request the court answered: 'Yes, as to the letter of
Metropolitan Company of September 28th; but on the facts
found I do not regard the latter part, beginning with the
words 'and the plaintiff is precluded,'
applicable.' The defendant duly excepted to the refusal
of the court to give the ruling as requested and to the
ruling that the latter part of said ruling was not
applicable.
'Seventh.
That the plaintiff having finally reduced to writing in their
letter of September 28th to Friend his authority to act for
them, Friend's authority to accept in the plaintiff's
behalf was limited to the terms of that letter.'
To this
ruling the court said, 'No, under facts found,' and
to the refusal of the court to give this ruling the defendant
duly excepted.
'Eighth.
That the evidence in this case would not warrant a finding
that the plaintiff knew that Friend had accepted the offer of
Mack, other than by and in accordance with the terms of its
letter of acceptance of September 28th (Exhibit 5).'
This
ruling was refused by the court, to which refusal the
defendant duly excepted.
'Ninth.
That the evidence in this case disclosed no such knowledge on
the part of the plaintiff of the terms of Friend's letter
as to constitute a ratification of that letter as an
acceptance.'
To
which request the court answered: 'Yes, as to the letter;
but I find other facts.' The defendant duly excepted to
the ruling of the court that on an application of this ruling
to the evidence the plaintiff was entitled to recover.
'Tenth.
That inasmuch as the offer is signed by Mr. Mack personally
and is therefore ostensibly the offer of Mr. Mack and not of
the Boutell Company, in order to hold the Boutell Company it
must be established by the plaintiff that Mr. Mack in signing
that offer was not only intending to act for the Boutell
Company, but that that offer was within the actual authority
vested in him and the Boutell Company.'
To this
request the court said: 'Yes; but modified by inserting,
after 'actual' in the last line, 'or
ostensible." To the refusal of the court to give the
ruling as requested, and to the modification thereof by the
insertion of the words 'or ostensible,' the defendant
duly excepted.
'Eleventh.
That it appearing in this case that the actual business of
the Boutell Company was in their own vessels and that that
company had never engaged in the business of chartering any
but their own vessels and that they never had a tug of $1,000
horse power, it was not within the power actually vested in
Mr. Mack as general manager of the company to contract in
behalf of the company for the furnishing of the tonnage
specified in the offer.'
This
ruling was refused by the court, to which ruling the
defendant duly excepted.
'Twelfth.
That it appearing in this case that the actual business of
the Boutell Company was in their own vessels and that the
company had never engaged in the business of chartering any
but their own vessers and that they never...
