Rochester Tumbler Works v. Mitchell Woodbury Co.

• Decision Date: 17 June 1913
• Citation: 102 N.E. 438,215 Mass. 194
• Parties: ROCHESTER TUMBLER WORKS v. MITCHELL WOODBURY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 194

102 N.E. 438

ROCHESTER TUMBLER WORKS v. MITCHELL WOODBURY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1913

COUNSEL

Whipple, Sears & Ogden, of Boston, for plaintiff.

Carver Wardner, Cavanagh & Walker, of Boston, for defendant.

OPINION

LORING J.

The defendant bought of one Thompson, receiver of the Rochester Tumbler Works, three lots of merchandise, and later, of Thompson and a coreceiver subsequently appointed, a fourth lot. This action was brought to recover the price of the four lots, amounting to $214.35. The four lots of merchandise were sold in March and April, 1908. At the trial the defendant admitted the purchases but insisted that a release to the defendant executed by the receivers on February 17, 1910 covered the purchases here in question.

The following facts in connection with that release were put in evidence without objection, and on those facts taken in connection with the release itself the presiding judge left it to the jury to find whether the sales here in question were included in the release.

The facts referred to were these: Thompson was appointed receiver of the Rochester Company on December 7, of the Riverside Company on December 10, and of the Crystal Glass Company and the Ohio Flint Glass Company on December 17, 1907. Before the receivership these four companies had sold merchandise to the defendant which, with interest to February 16, 1910, amounted to $4,277.51. The defendant had refused to pay the receivers this sum on the ground that it was entitled to a rebate, and four actions had been brought in the superior court to collect these amounts. At first the receivers refused to allow the rebate insisted upon by the defendant, but later they changed their position on this point, and in February 1910, they came to Boston, called upon the president of the defendant company, and presented to him a written statement (which afterwards was annexed to the release subsequently made) in which there were set forth the details making up the $4,277.51 stated and in addition the details of the rebate amounting to $1,971.33, which they were then ready to concede. This made the net amount due from the defendant $2,306.17. The receivers presented this statement to the president of the defendant company. He left the room and on his return said that he accepted their figures, and thereupon one of the receivers dictated the agreement of compromise, the material part of which is hereinafter set forth, to which a copy of the statement mentioned above was annexed. This was executed in duplicate the next day, and later, the $2,306.17 was paid by the defendant to the receivers.

The president of the defendant company testified that when he left the room he took to his bookkeeper the receivers' statement or the amount shown by the statement to be due from the defendant company, and finding that it was less than the amount which the books of the defendant company showed to be due he accepted the receivers' figures without verifying the accuracy of their computation. On cross-examination he testified that at first the purchases made by him from the receiver were put into the account of purchases made by him from the companies, because 'the bookkeepers did not understand,' while later a new account was opened on the defendant company's books of the purchases made by it from the receivers. He further testified that the first of these two accounts included the four purchases made by the defendant company from the receivers as well as the purchases made by the defendant company from the several companies before the receiverships. The president further testified that at the interview on February 16, 1910, he told the receivers that he 'would take their settlement if they would give me a full release, which they agreed to do.' Both receivers testified that a full release was not granted, asked for or spoken of at this interview. It was testified to at the trial without contradiction that there was no rebate on sales made by the receivers. It did not appear that any rebate on receivers' sales had been claimed at any time.

On September 10, 1910, Thompson wrote to the defendant stating that the three parcels of merchandise bought by the defendant of him as receiver in March and April, 1908, had been overlooked, and asking him to pay for them. A similar letter was written on the same day by the two receivers with respect to the fourth lot of merchandise bought by the defendant of the two receivers in April, 1908. The defendant answered that it had a receipt in full from the receivers and refused to pay; whereupon this action was brought.

The defendant asked for the following rulings:

'(1) That on all the evidence the verdict must be for the defendant. (2) A claim for goods sold by the receivers to defendant would be a claim of the plaintiff company and would be an account due the plaintiff company. (3) A claim or account for the goods sold the defendant was a claim or account due the

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