Morton v. Clark

• Citation: 63 N.E. 409,181 Mass. 134
• Parties: MORTON et al. v. CLARK et al.
• Decision Date: 02 April 1902
• Court: United States State Supreme Judicial Court of Massachusetts

181 Mass. 134

63 N.E. 409

MORTON et al. v. CLARK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1902

COUNSEL

Robt. M. Morse and Wm. M. Richardson, for plaintiffs.

Henry M. Rogers and Geo. W. Morse, for defendants.

OPINION

KNOWLTON J.

This action is brought to recover damages for the breach of an executory contract for the sale of merchandise, of which a memorandum in writing was signed by the defendants. The plaintiff declared on the memorandum as a contract in writing, and not on an oral contract of which the writing is a memorandum. He is bound by his declaration, and he cannot object to treatment of the memorandum as a contract in writing. The defendants stood on their rights under the pleadings, and requested the ruling 'that the plaintiff cannot maintain the action on the pleadings.' The writing gives the quantities and prices of the different kinds of goods, and prescribes generally the times for the delivery of them as they are ready for shipment, but it is silent in regard to the times for payment. In the absence of evidence to aid in the interpretation of the contract, its true construction would require payments to be made from time to time, on delivery of the goods by the different shipments. Fessenden v. Mussey, 11 Cush. 127; Stephenson v Cady, 117 Mass. 6. It makes no provision for any credit but in the construction of such a writing we may always hear oral testimony in regard to the facts and the subject to which it relates. In this case the plaintiff sought to show that the writing was made as part of a long course of dealings between the parties, in which it was well understood that payments were to be made by drafts on 60 days' time. Such evidence, if there were proper pleadings to warrant the introduction of it, would be competent for the purpose of showing that the true meaning of the writing, as applied to the facts and the relation of the parties, would call for payment by the acceptance of such drafts, instead of payments in cash on delivery of the goods. Tibbetts v Summer, 19 Pick. 166. Whether the evidence received was within the rule, we are unable to determine from the bill of exceptions. Although the drafts put in evidence are referred to as exhibits, no copy of them has been furnished us, and we do not know how long a period they covered. The plaintiff testified that he had done business with the defendants perhaps eight or ten months before making this contract. The judge in his findings says, 'The parties had dealt with each other for two years before.' It does not plainly appear in the bill of exceptions whether this contract is a part of a general course of dealing, such that the previous terms of payment should apply to it. The plaintiff testified, and all agreed, that the previous dealings were on a very much smaller scale. They may have been independent transactions, each upon its own terms, and so of little or no significance on the question before the court; but they were all sales of goods, for which the terms of payment had been uniform. The writing called for payments on delivery of the goods, of for payments by accepted drafts on 66 days' time, according to the effect to be given to the evidence of previous dealings, in reference to the propable understanding of the parties in making this contract. This evidence was received de bene, although the declaration set out a contract which, by implication, required payments to be made on delivery. Evidence...