National Paper & Cordage Co. v. Atlantic Carton Corp.
| Decision Date | 07 June 1955 |
| Citation | 332 Mass. 651,127 N.E.2d 196 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | NATIONAL PAPER & CORDAGE CO., Inc. v. ATLANTIC CARTON CORPORATION. |
Paul L. Keenan, Boston, Mass. (Joseph Aborn, Boston, with him), for plaintiff.
Solomon Rosenberg, New Bedford, for defendant.
Before QUA, C. J., and WILKINS, SPALDING and COUNIHAN, JJ.
The plaintiff brought this action of contract alleging that the defendant had failed to deliver sixty-five tons of chipboard. The defendant filed a declaration in set-off. The case was tried to a jury who returned a verdict for the plaintiff, and found for the defendant (original plaintiff) on the declaration in set-off. The case comes here on the defendant's exceptions to the exclusion of certain evidence, to the denial of its motion for a directed verdict, and to the denial of its motion for a new trial.
The pertinent evidence was as follows: The plaintiff on July 11, 1950, ordered one hundred ten tons of chipboard from the defendant on a purchase order which stated that it was to be shipped 'in our name to Manchester Hosiery Mills, * * * Manchester, N. H. * * * @ 75.00 per ton del'd less 5% Commission.' On July 14, the plaintiff ordered fifty tons of chipboard from the defendant on a purchase order similar to the earlier one, except that the merchandise was to be shipped to the Manchester Knitting Mills, in Manchester, New Hampshire. The price stated in the order was $75 'per ton del'd Less 5% Commission.' Each of these orders was acknowledged by the defendant on a form entitled 'Acknowledgment of Order.' In each acknowledgment the plaintiff was designated as the customer and beside the word 'Remarks' appeared the following: '@ $75.00 a ton less 5% comm.' Just below appeared the following imprint from a rubber stamp: 'This order accepted subject to price in effect at date of shipment.'
Of the one hundred sixty tons called for by these orders the defendant shipped ninety-five. On November 3, 1950, the defendant wrote to the plaintiff stating that since it had learned the mills (Manchester Hosiery and Manchester Knitting) had cancelled 'the unfilled balances on their orders' it considered 'the balances cancelled on our orders to the above concerns from you.' The plaintiff, on December 2, 1950, requested the defendant to ship the undelivered balance of sixty-five tons to its place of business in Cambridge, Massachusetts. This was not done. As of November 3, 1950, the price of chipboard had increased to $95 per ton. With respect to these orders credit was extended to the plaintiff and the defendant 'had nothing to do with collecting from the' mills.
It was the defendant's contention that the plaintiff was acting as its broker and was not a contracting party. One O'Brien, the defendant's manager, was asked to state a conversation he had had with one Cubell, president and treasurer of the plaintiff, prior to the transactions in question, but the question was excluded on the ground that 'Any talk previous to the execution of that contract * * * [was] incompetent.' The defendant then made the following offer of proof: 'That at the time when * * * [it] first began doing business, Mr. Cubell came to the * * * [defendant] and requested the privilege of doing business with it as a broker; that he asked as to the method in which business would be done, and he was told it was to be done by his taking the order and being responsible for the price for...
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