Pope v. Brooks

• Decision Date: 28 May 1924
• Citation: 249 Mass. 381,144 N.E. 214
• Parties: POPE et al. v. BROOKS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 381

144 N.E. 214

POPE et al.

v.BROOKS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1924.

Report from Superior Court, Suffolk County; MacLeod, Judge.

Action by Richard E. Pope and others against Frank H. Brooks and others for breach of contract to take and pay for merchandise. On report. Judgment for defendants.J. C. Johnston and G. E. Richardson, both of Boston, for plaintiffs.

O. Storer, of Boston, for defendants.

BRALEY, J.

The first count of the declaration alleges that the parties entered into two contracts, respectively dated February 12, 1920, and March 1, 1920, whereby the plaintiffs agreed to procure, and the defendants, who were wholesale dealers and importers, agreed to take and pay for, a quantity of 90-line and 60-line rugs of various sizes and designs as shown by samples, which were to be made in China for the plaintiffs, who were to pay all import duties. Delivery under the contract for the 90-line rugs was to be six months from February 12, 1920. While it was conceded that by a subsequent agreement the price and time for delivery of these rugs were changed, the evidence whether there was any modification of the alleged second contract is irreconcilable. The defendants, who contended throughout the trial that all the rugs were covered by one order, wrote the plaintiffs on November 18, 1920, after acceptance of the first shipment as hereafter stated:

‘We find we do not need, even under the present terms, any more of the rugs which were covered by the original order, which owing to changed conditions you were unfortunately obliged to abandon with our consent, and therefore you will kindly not make us any more shipments.’

The plaintiffs however did not consent to a cancellation, and on or about November 20, 1920, notified the defendants that the second shipment, which comprised the balance of the rugs specified in the first order and the balance of rugs of the second order, had arrived in New York. And there was evidence tending to show that the plaintiffs offered the rugs covered by the second shipment to the defendants with a request for payment on the modified terms. The plaintiffs not having declared on the contract as modified, the defendants moved for a directed verdict. But the jury on conflicting evidence could find that the order for the 60-line rugs was a separate or additional order given orally by the defendant Brooks, and was thus specified in the plaintiffs' confirmation in writing sent to the defendantsMarch 1, 1920. The proof therefore as to this contract could be found to conform to the statement in the declaration that in the beginning there were two contracts which the parties mutually agreed to perform. If so considered, the amount of each contract, which was not in writing signed by the defendants, was in excess of $500, and the statute of frauds is pleaded. G. L. c. 106, § 6.

[2][3][4][5][7] But under clause 2 of section 6, as construed in Adams v. Cohen, 242 Mass. 17, 19, 136 N. E. 183, following Goddard v. Binney, 115 Mass. 450, 454,15 Am. Rep. 112, where as in the case at bar thegoods are not on hand, but are to be manufactured for the purchaser upon his special order, and not for the general market, the contract is not within the statute. The plaintiffs were not the manufacturers. See Atlas Shoe Co. v. Rosenthal, 242 Mass. 15, 136 N. E. 107. It is unnecessary to discuss the doctrine of substituted performance by the acceptance of a part of the rugs under the modified terms of the first contract, which the plaintiff claimed at the trial took the case out of the statute. Cummings v. Arnold, 3 Metc. 486,37 Am. Dec. 155. The first shipment, as the jury could find, arrived in Boston in bond September 23, 1920, but could not be removed until appraised by the custom officials October 9th. The time for delivery under the first contract having elapsed, the parties entered into negotiations...