Orr Felt & Blanket Co. v. Sherwin Wool Co.

• Decision Date: 15 April 1924
• Parties: ORR FELT & BLANKET CO. v. SHERWIN WOOL CO. SHERWIN WOOL CO. v. ORR FELT & BLANKET CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 553

143 N.E. 541

ORR FELT & BLANKET CO.

v.SHERWIN WOOL CO.

SHERWIN WOOL CO.

v.ORR FELT & BLANKET CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 15, 1924.

Exceptions from Superior Court, Suffolk County; F. W. Fosdick, Judge.

Two actions of contract, by the Orr Felt & Blanket Company against the Sherwin Wool Company, and by the Sherwin Wool Company against the Orr Felt & Blanket Company. Verdict for plaintiff in each action, and the Wool Company brings exceptions. Exceptions overruled in each case.

M. E. Bernkopf, of Boston, and D. J. Dempsey, Jr., of Millbury, for Sherwin Wool Co.

D. F. Carpenter, of Boston, for Orr Felt & Blanket Co.

CARROLL, J.

The first of these two actions is in contract, brought by the Orr Felt & Blanket Company (hereinafter spoken of as Orr) against the Sherwin Wool Company (hereinafter called Sherwin). The second action is in contract brought by Sherwin against Orr. Both actions arise from the same transaction. Orr manufactured blankets at Piqua, Ohio; Sherwin was engaged in the rag business in Boston. Orr had no machinery for making rags into shoddy, but agreed to buy rags from Sherwin if he would have them made into shoddy for and on account of Orr. The process of making rags into shoddy is known as ‘picking and carding.’ Rags ‘picked and carded’ at various shoddy mills on the order of Sherwin at Orr's expense were shipped to Orr. On April 2, 1917, Orr sent to Sherwin an order, the material part of which is as follows:

‘Please ship the following to us at Piqua, Ohio, via Star Union Line: * * * Fifty thousand (50,000) lbs. white serge, at 46c., * * * picked and carded. Ship as made. Terms: 1 per cent. 10 days, net 60, f. o. b. Boston.’

There was evidence that during the negotiations which led up to the placing of this order (hereafter referred to as the white serge order) Sherwin shipped a bale of rags to a shoddy mill, in his name, where the rags were picked and carded on Orr's account. Subsequent to the order, shipments of rags to shoddy makers were for the account of Orr, but this fact was not known to the shoddy makers. The rags converted into shoddy were returned to Sherwin, and reshipped by him to Orr in the same container in which they had been received from the shoddy makers, and generally in the same freight car. The first shipment of 525 pounds and another shipment of 12,152 pounds were accepted and paid for by Orr. On December 20, 1917, Sherwin shipped 28,907 pounds of white serge rags to the shoddy mill and on the same date sent to Orr an invoice of this shipment. The amount of this invoice, $13,297.22, was paid by Orr. This shipment of rags was made into shoddy and sent to Orr in several lots. A portion of this shipment was accepted and used by Orr but the last four lots recived July 3, 10, 12, and 13, amounting to 17,000 pounds of rags or 16,155 pounds of shoddy (the rags shrinking in the process of picking or carding) were rejected by Orr, on the ground that they were not equal in quality to that called for by the contract. Orr seeks to recover $8,174.20, which amount it is admitted he paid for 16,155 pounds rejected.

While the white serge order was being filled, negotiations began for the purchase of ‘brown worsted clips,’ clips being known in the trade as new and unused pieces of rags. Orr ordered 50,000 pounds of brown worsted clips to be ‘picked and carded same as shipments you have been making to us.’ Sherwin shipped 44,337 pounds of its ‘regular packing No. 50 brown worsted clips' to a shoddy mill. After these were converted into shoddy and returned to Sherwin they were forwarded, in the same manner as the white serge, to Orr and an invoice sent him for $21,291.36, which was paid later. Seven additional bales, invoiced for $3,059.04, were sent to Orr. This invoice was not paid. No part of these shipments was used by Orr, and he seeks to recover $21,291.36 which he paid Sherwin on the ‘brown worsted clips.’

It was agreed that $8,174.20 and $21,291.36 were paid by Orr and received by Sherwin. In the action brought by Orr, there was a verdict in the sum of $33,836.28 for the plaintiff.

Sherwin seeks to recover the sum of $9,897.55 on an account annexed, for merchandise sold also for picking and carding the rags. Orr admitted he owed Sherwin for materials received by him. Sherwin received a verdict in the sum of $1,086.02.

The ninth count in Orr's declaration is to the effect that the parties entered into a contract for the purchase and sale of 50,000 pounds of white serge; that Orr paid for a certain number of pounds of this material; that thereafter Sherwin delivered the merchandise ‘pursuant to the amount so paid for’; that of said amount 16,155 pounds were not of the order and quality specified; and that Orr rejected the same and has since held them subject to Sherwin's order. Sherwin asked the court to instruct the jury that Orr was not entitled to recover on this count; the contention of Sherwin being that the white serge contract was an indivisible contract, that the buyer could not reject a part of the goods.

[1] The last four shipments made to Orr. that is the shipments made on July 3, July 10, July 12, and July 13, were all rejected by him. He had the right to inspect the goods sent him; and if they were of an inferior quality to those ordered and paid...