Morrison v. Tremont Trust Co.

• Decision Date: 21 May 1925
• Citation: 147 N.E. 870,252 Mass. 383
• Parties: MORRISON v. TREMONT TRUST CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 383

147 N.E. 870

MORRISON

v.TREMONT TRUST CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1925.

Report from Superior Court, Suffolk County; J. D. McLaughlin, Judge.

Action in contract and in tort by William R. Morrison against the Tremont Trust Company. On report. Judgment for defendant.

P. D. Turner, of Boston, and J. J. Matthews, of Dorchester, for plaintiff.

C. F. Rowley and E. G. Fischer, both of Boston, for defendant.

CROSBY, J.

This is an action in which a count in contract and a count in tort are joined under the statute. G. L. c. 231, § 7, cl. 6. The first count alleges that on or about November 14, 1919, the defendant guaranteed, in writing, the payment of a draft drawn on it by the plaintiff in the sum of $8,850, upon presentation thereof attached to a bill of lading for a shipment of overcoats; and a breach by the defendant of the guaranty. The second count alleges that ‘on or about the 14th day of November, 1919, the defendant represented that a certain amount of money had been deposited with it in part payment of a draft in the sum of $8,850’ for a shipment of overcoats, and that ‘payment of such draft would be made on presentation of said draft’ with bill of lading attached; that ‘said representations were made for the purpose of inducing the plaintiff’ to forward the shipment of overcoats to Boston; that relying on the representations the plaintiff ‘shipped the overcoats, and presented a draft for $8,850 attached to a bill of lading’ to the defendant; that the defendant well knew that said representations were false and refused to pay the draft or any part thereof. The answer is a general denial and payment.

The case was tried before a judge of the Superior Court and a jury. At the close of the evidence, the judge on motion of the defendant directed a verdict in its favor, subject to the plaintiff's exception. The defendant also excepted to certain evidence admitted. The case has been reported to this court.

There was evidence that before the transaction out of which this action arises the plaintiff, a dealer in army overcoats, had made various sales to one Bockowitz. Before November 14, 1919, the plaintiff had entered into negotiations with Bockowitz for the sale of three thousand overcoats, and on that date the plaintiff received the following telegram sent by one H. McKinley Swig, who was employed by the defendant as a collection clerk:

‘Western Union Telegram.

‘Received at A243FY FW 36 2 extra count dot RM Boston Mass 351 PM Nov 14 1919 W R Morrison 232 Caswell Hotel Baltimore Md Have been advised that payment on three thousand overcoats at $2.95 will be made on arrival B L Answer telephone call for particulars Deposit been left here in part payment Tremont Trust H Surg 430 PM’

It was agreed that the signature ‘H. Surg’ was intended to be ‘H. Swig,’ who is the H. McKinley Swig above referred to.

On November 18, 1919, the plaintiff acknowledged the receipt of this telegram in a letter addressed to the defendant, quoting the telegram, stating the manner in which he intended to make the shipment to Bockowitz, and stating the reason why he did not telephone for particulars as requested in the telegram.

On November 19, 1919, the plaintiff sent a telegram addressed to the defendant, correcting the price mentioned in his letter of November 18, and referring to the telegram of November 14 as if it were advice that the payment therein referred to would be made by the defendant. By letter dated November 20, the plaintiff confirmed his telegram of November 19. Thereafter the plaintiff delivered the three thousand overcoats to the railroad for shipment to himself at Boston.

On November 26, the plaintiff sent a telegram addressed to ‘Tremont Trust Co. Attention H. Surg’ in which reference is made to the telegram of November 14, ‘wherein you state draft covering my sale overcoats Bockowitz will be paid by you upon presentation with negotiable bill lading’; and in which it was further stated that the plaintiff was ready to make a draft with bill of lading attached and requested arrangements to be made so that he could have the draft paid in New York. He made the draft, attached it to an invoice and bill of lading and took it to the Irving National Bank in New York, the New York correspondent of the defendant. At that time, a clerk in the Irving National Bank (one Knight) had two talks by telephone with some one purporting to represent the defendant. This person at first said the defendant would pay the draft, but later in the conversation said the trust company would not pay it. These conversations were reported to the plaintiff, who left the draft with the bank for collection and came to Boston. He saw H. M. Swig walking around in the bank and talking there with clerks and others. He told the plaintiff he was the one who had the conversations with Knight and the plaintiff at the Irving National Bank; that he sent the original telegram and had received through the trust company all the letters and telegrams in evidence. He also said to the plaintiff, ‘Don't go see my father; we will get this matter fixed up to your satisfaction.’ It appeared that H. M. Swig's father, Simon Swig, was vice president of the trust company. There was no evidence that any one connected with the defendant besides H. M. Swig knew of the transaction. There was evidence showing that during November, 1919, Bockowitz had a credit of $12.31 with the defendant which was carried as an ‘inactive account,’ and that there was no deposit which had been left with the defendant in part payment on account of the purchase by Bockowitz from the plaintiff. There was also evidence that in 1919 the treasurer of the trust company opened its mail.

[3] If we assume, without deciding, that the telegram is a sufficient memorandum of the alleged guaranty to bind the defendant within the terms of the statute of frauds (G. L. c. 259, § 1, cl. 2), it is plain that it does not contain any promise made by the defendant. In substance and effect it is merely a recital that the defendant has been informed by some one (presumably Bockowitz) that a draft with bill of lading attached would be paid. It contains no promise by the defendant that such payment would be made by it; and does not even promise that the deposit stated to have been left...