Nat'l Contracting Co. v. Vulcanite Portland Cement Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtKNOWLTON
Citation78 N.E. 414,192 Mass. 247
Decision Date19 June 1906
PartiesNATIONAL CONTRACTING CO. v. VULCANITE PORTLAND CEMENT CO. VULCANITE PORTLAND CEMENT CO. v. NATIONAL CONTRACTING CO.

192 Mass. 247
78 N.E. 414

NATIONAL CONTRACTING CO.
v.
VULCANITE PORTLAND CEMENT CO.
VULCANITE PORTLAND CEMENT CO.
v.
NATIONAL CONTRACTING CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 19, 1906.


Exceptions from Superior Court, Suffolk County; John H. Hardy, Judge.

Action by the National Contracting Company against the Vulcanite Portland Cement Company, and by defendant against plaintiff. There was judgment for defendant in the first case, and for plaintiff in the second case, and the National Contracting Company brings exceptions. Exceptions overruled.

The auditor to whom the cases were referred found that, in the year 1900, the Vulcanite Company sold and delivered to the National Company a large quantity of cement; that there was no agreement between the parties as to when payments or deliveries should be made but that as a matter of fact each shipment was paid for about one month after it was received. He also found that, during the period covered by the transactions involved in the cases, and for some years prior thereto, it was the custom of the trade in Boston, where cement was sold by manufacturers without any special agreement as to the time of payment, for payment to be made in 30 days after delivery. A further finding was to the effect that on all the evidence it came to be understood and impliedly agreed between the parties soon after the contract was executed and performance begun that payments for cement delivered by the Vulcanite Company to the National Company should be made in 30 days after delivery.

1. SALES-TIME FOR PAYMENT.

Where a contract of sale fixes no time for payment, the seller is entitled to payment on delivery.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, ss 229-233.]

2. SALES-DELIVERY IN INSTALLMENTS-RIGHT TO REQUIRE PAYMENT.

Where goods are sold to be delivered in installments, with payment on delivery, the seller is entitled, at any time, to require payment for installments already delivered, as a condition precedent to the delivery of further installments.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, ss 232, 506.]

3. SALES-PAYMENT OF PRICE-ANTICIPATED BREACH.

Where goods are sold in installments, to be paid for on delivery, the buyer has no right to retain sums due for installments delivered as security against an anticipated breach by defendant of the provisions of the contract as to future deliveries.

4. SALES-INSOLVENCY OF BUYER-EFFECT.

Where goods were sold to be delivered in installments and paid for on delivery, the fact that that the buyer was technically insolvent, but not so as to interfere with the performance of its contracts in the usual course of its business did not affect the right of the seller to insist as a condition to future deliveries on the payment of sums due for installments already delivered, or give the buyer a right to retain such sums as security against anticipated failure of the seller to deliver future installments.

5. SALES-TIME FOR PAYMENT-MODIFICATION OF CONTRACT-EVIDENCE.

On an issue as to whether under a contract for the sale of goods to be delivered in installments and fixing no time for payments, it was agreed that a certain credit should be extended, findings that under a former similar contract payments were made 30 days after delivery; that it was a custom of the trade under such contracts for payments to be made 30 days after delivery, and that it was understood and impliedly agreed that payments should be so made, were proper and material.

[78 N.E. 415]

Geo. [192 Mass. 253]L. Huntress, for Vulcanite Portland Cement Co.

Richard W. Hale and F. W. Grinnell, for National Contracting Co.


KNOWLTON, C. J.

The first of these cases is a suit brought to recover damages for a refusal of the defendant to furnish to the plaintiff a quantity of Portland cement, according to the terms of a contract in writing made by the parties. The second is a suit by the defendant in the first action, to recover from the plaintiff in that action the price of cement delivered under this contract. The cases were heard before an auditor who found for the plaintiff in the first action, whom we will hereinafter call the plaintiff, and he allowed, in diminution of the plaintiff's claim, the amount due for cement...

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10 practice notes
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...217 F. 328, S. C. 133 C. C. A. 244; Kokomo Co. v. Inman, 134 N.Y. 92; Frost v. Knight, L. R. 7 Ex. 111; National Co. v. Vulcanite Co., 78 N.E. 414; Remy v. Olds, 26 P. 355; J. K. Armsby Co. v. Grays Harbor Co., 123 P. 32; Windmuller v. Pope, 14 N.E. 436; Central Trust Co. v. Chicago Assoc.,......
  • Tilton v. James L. Gates Land Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 11, 1909
    ...63 N. E. 409;National M. & T. Co. v. Standard S. M. Co., 181 Mass. 275, 63 N. E. 900;National Contracting Co. v. Vulcanite P. C. Co., 192 Mass. 247, 78 N. E. 414. This court has held that where a person was employed at a stated salary per year, payable quarterly, the employé was justified i......
  • Auer & Twitchell v. Robertson Paper Co., No. 253.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 9, 1920
    ...that they should be made as a condition precedent to further deliveries. National Contracting Co. v. Vulcanite Portland Cement Co., 192 Mass. 247, 78 N. E. 414. This being so, the plaintiff was not in default, and its refusal to perform further was not a breach of the contract entitling the......
  • Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 20, 1908
    ...contention of the defendant. Blodgett v. Foster, 120 Mich. 392, 79 N. W. 625;National Contracting Co. v. Vulcanite Portland Cement Co., 192 Mass. 247, 78 N. E. 414;Merrimack Mfg. Co. v. Quintard, 107 Mass. 127. But there was evidence that the plaintiff's statements of satisfaction with the ......
  • Request a trial to view additional results
10 cases
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...217 F. 328, S. C. 133 C. C. A. 244; Kokomo Co. v. Inman, 134 N.Y. 92; Frost v. Knight, L. R. 7 Ex. 111; National Co. v. Vulcanite Co., 78 N.E. 414; Remy v. Olds, 26 P. 355; J. K. Armsby Co. v. Grays Harbor Co., 123 P. 32; Windmuller v. Pope, 14 N.E. 436; Central Trust Co. v. Chicago Assoc.,......
  • Tilton v. James L. Gates Land Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 11, 1909
    ...63 N. E. 409;National M. & T. Co. v. Standard S. M. Co., 181 Mass. 275, 63 N. E. 900;National Contracting Co. v. Vulcanite P. C. Co., 192 Mass. 247, 78 N. E. 414. This court has held that where a person was employed at a stated salary per year, payable quarterly, the employé was justified i......
  • Auer & Twitchell v. Robertson Paper Co., No. 253.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 9, 1920
    ...that they should be made as a condition precedent to further deliveries. National Contracting Co. v. Vulcanite Portland Cement Co., 192 Mass. 247, 78 N. E. 414. This being so, the plaintiff was not in default, and its refusal to perform further was not a breach of the contract entitling the......
  • Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 20, 1908
    ...contention of the defendant. Blodgett v. Foster, 120 Mich. 392, 79 N. W. 625;National Contracting Co. v. Vulcanite Portland Cement Co., 192 Mass. 247, 78 N. E. 414;Merrimack Mfg. Co. v. Quintard, 107 Mass. 127. But there was evidence that the plaintiff's statements of satisfaction with the ......
  • Request a trial to view additional results

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