Nickel v. Zeitz

• Decision Date: 11 January 1927
• Citation: 154 N.E. 769,258 Mass. 282
• Parties: NICKEL v. ZEITZ et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 282

154 N.E. 769

NICKEL

v.ZEITZ et al.

Supreme Judicial Court of Massachusetts, Dukes County.

Jan. 11, 1927.

Appeal from Superior Court, Dukes County; M. Morton, Judge.

Action of contract by Ernest A. Nickel against Barney Zeitz and others on agreement for laundering defendants' property. From an order sustaining a demurrer to the declaration, plaintiff appeals. Order reversed, and exceptions dismissed.

M. M. Johnson and John H. Powers, both of Boston, for appellant.

John W. Cummings, 2d, of Fall River, for appellees.

CROSBY, J.

The case is here on an appeal from an order sustaining a demurrer to the second, third, and fourth counts of the amended declaration. The declaration is based upon an agreement and a supplemental agreement, both in writing, for the laundering by the plaintiff of certain articles-the first count, for laundering certain underwear and flannel shirts; the second for laundering approximately 205,975 leather jerkins; the third, for laundering approximately 802 bales of puttees; and the fourth, for laundering approximately 237 bales of stockings. The second, third, and fourth counts are substantially identical except as to the kind of article to which reference is made.

The original agreement, dated February 27, 1919, was for the washing, cleansing, drying, baling and delivery of the articles by the plaintiff to the defendants, and provided in part as follows:

‘Optional with the party of the second part [the defendants], the party of the first part [the plaintiff] also agrees, if desired, to wash, cleanse, salvage and dry, according to second party's instructions the following additional lots of merchandise and deliver as hereinbefore specified, at a price to be mutually agreed upon, to wit: Approximately and more or less of each quantity, 237 bales of stockings; 205,975 leather jerkins; 802 bales puttees; 71 bales leather gloves; 349 bales waist belts; 94,428 pair rubber boots; 139 cases shoe laces.’

Thereafter the following supplemental written agreement was entered into by the parties:

‘Supplemental to our originally signed contract of February 27, 1919, it is now mutually agreed that Ernest A. Nickel will transport to his laundry, dry, sort for size and bale the leather jerkins for ten cents per garment; for such lots of leather jerkins as he has also brushed, the price to be fifteen cents per garment.

‘Any further lots of leather jerkins which he may also brush to be paid for at the rate of fifteen cents per garment.

‘Puttees washed, dried, paired and bundled and baled at ten cents per pair.

‘Socks to be paid for at three cents per pair; all to be delivered in good condition at Wood's Hole.

‘Witness our hands this nineteenth day of March, nineteen hundred and nineteen.’

It is in substance alleged in the amended declaration that under the contract the defendants delivered to the plaintiff 92,600 leather jerkins, 16,824 pairs of puttees, and 18,693 pairs of stockings, but that the defendants have neglected and refused to deliver the balance of said articles to be laundered in accordance with the terms of the contract.

[1] It is plain that under the original agreement the question whether the puttees, jerkins, or stockings should be laundered by the plaintiff was optional with the defendants. The price to be paid for work upon these articles was not therein stated. Unless and until the defendants exercised their option, no right existed on the part of the plaintiff to do any work upon those articles. When, however, under the supplemental agreement, the prices were fixed, and the defendants delivered to the plaintiff some stockings, jerkins, and puttees, the defendants could be found to have exercised their option to have those articles laundered by the plaintiff, who, upon completing the work, would be entitled to be paid for substantially the quantities named and described in the original agreement.

[2][3] If the defendants had refused to deliver substantially the whole number agreed upon, the plaintiff would be entitled to recover the damages he had sustained because of such refusal, unless the entire contract is so vague and indefinite as to be unenforceable. The original agreement is to be read in the light of the supplemental agreement. The plaintiff made an offer for a certain consideration to do work on ‘approximately and more or less' of each quantity of the goods, and the defendants delivered to the plaintiff the quantities of each kind of articles as above stated. Although different prices were to be paid for the different ...