National Contracting Co. v. Vulcanite Portland Cement Co.

• Decision Date: 19 June 1906
• Citation: 78 N.E. 414,192 Mass. 247
• Parties: NATIONAL CONTRACTING CO. v. VULCANITE PORTLAND CEMENT CO. VULCANITE PORTLAND CEMENT CO. v. NATIONAL CONTRACTING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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

COUNSEL

Geo L. Huntress, for Vulcanite Portland Cement Co.

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

OPINION

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 delivered to the defendant in the first action, who will hereinafter be called the defendant. The case was afterwards tried before a judge without a jury, no evidence being introduced except the auditor's report, and such evidence, documentary and oral, as either party chose to offer of that which previously had been received by the auditor. The judge reversed the decision of the auditor and found for the defendant, holding the plaintiff liable for the price of that which was delivered and not paid for. The contract signed by the parties was silent as to the time of payment. The legal effect of the contract was, therefore, to make the price of the goods payable on delivery. Fessenden v. Mussey, 11 Cush. 127. Stephenson v Cady, 117 Mass. 6. Morton v. Clark, 181 Mass 134, 63 N.E. 409. Both the auditor and the judge found that the parties subsequently, by their conduct in regard to the various shipments made and bills rendered and payments of the bills, impliedly agreed with each other that the writing should be modified in its legal effect in this particular and that the terms of payment should be cash in thirty days after the delivery of each shipment. All the bills were made with a statement to this effect, and the plaintiff never objected to it, but acted in a way to indicate that it adopted this modification of the contract proposed by the defendant. We are of opinion that this finding was well warranted by the evidence.

By the contract the defendant agreed to furnish all the Portland cement that the plaintiff might require for building sections 52, 53, and 54 of the high level sewer, Boston for $1.50 per barrel. The fair interpretation of the contract is that the cement was to be furnished from time to time upon orders, as needed, within a reasonable time after the receipt of the orders. The contract was dated November 7, 1901. Cement was ordered and delivered under the contract from time to time after that date, the last shipment being in June, 1902. On May 28, 1902, the defendant wrote to the plaintiff that, on account of a failure to obtain completion of its mill, No. 3, by May 1st, as it had expected to, it was extremely short of cement and much behind with its orders, and it asked for one month's notice of shipments required in the future, and intimated that for a time it would not be able to fill orders promptly. On May 31, 1902, defendant had orders from the plaintiff for 1,300 barrels, then unfilled. From that time the defendant failed to send all the cement ordered, and thus caused the plaintiff some inconvenience; but up to July 18th the plaintiff did not attempt an enforcement of its rights in this particular, and tried to get on as well as possible with such performance as the defendant was able to give. In the meantime the plaintiff was considerably behind in its payments, but the defendant made no serious complaint about it, although the judge found as a fact that it did not waive its legal right to payment according to the modified contract.

The crisis came when, on July 18th, the defendant being much behind in its shipments and the plaintiff being much behind in its payments, the plaintiff wrote to the defendant demanding prompt shipments in accordance with its orders, and stating that on the defendant's failure to fill the orders promptly, it should buy in the market and charge the defendant with the excess above the contract price. The market price of cement had arisen considerably after the date of the contract. To this letter the defendant replied on July 21st, demanding payment of so much of the account as was overdue, with prompt remittances in the future. In this letter the defendant stated that it would make no more shipments until it received payment for the two items which were then overdue. The plaintiff answered this letter on July 23, 1902, demanding the filling of its orders for cement, stating that it had already been obliged to buy elsewhere at considerable expense in order to go on with the work, and declining to pay the...