Rome v. Gaunt
| Decision Date | 22 June 1923 |
| Citation | 246 Mass. 82,140 N.E. 242 |
| Parties | ROME v. GAUNT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.
Action by Hyman J. Rome, doing business as H. J. Rome & Co., against Alfred C. Gaunt, doing business as Alfred C. Gaunt & Co., to recover the price of two shipments of wool. Finding for plaintiff on the first count for $5,802.60, and defendant brings exceptions. Exceptions overruled.
Defendant's exceptions were to the refusal of requested rulings and to rulings as made. The facts are stated in the opinion.
Abraham K. Cohen and Max E. Bernkopf, both of Boston, for plaintiff.
Lee M. Friedman, Paul D. Turner, and Friedman, Atherton, King & Turner, all of Boston, for defendant.
This is an action of contract to recover, under the first count of the declaration, the sum of $5,802.60 for two shipments of wool-one on July 29, 1920, and the other on the following day. Under the second count the plaintiff seeks to recover $4,785 for wool shipped on November 15, 1920. The record recites that no question arose at the trial as to quality, quantity or prices. All the evidence and findings material to the bill of exceptions are set forth in extracts from the findings and rulings of the court and are embodied in the record. The evidence consists largely of letters written by the parties and by the East Wilton Woolen Mills, a corporation hereinafter referred to as the company. The plaintiff is a dealer in wool, having places of business in Boston and Worcester. The defendant's business is that of a selling agent or factor representing several mills and having a place of business in New York City.
The court made the following findings: During the first part of 1920 the plaintiff had sold large quantities of wool to the East Wilton Woolen Mills, located at East Wilton, Maine, for which in May of that year the company was indebted in the sum of about $8,200. The company thereafter requested further shipments but owing to the indebtedness the plaintiff refused to make them. On May 13, 1920, shortly after such refusal, the for the sale of its product through his agency, the terms of which were set forth in a letter, bearing that date, from the defendant to the company; and were accepted by the latter. On the same day the defendant sent another letter to the company which was accepted by it; this letter is as follows:
‘May 13, 1920.
‘East Wilton Woolen Mills, East Wilton, Maine.
‘Attention Mr. W. W. Capers, President.
‘Gentlemen: Supplementing out letter to you of May 13th, we give below the conditions upon which we shall be pleased to guarantee and finance your purchases of wool.
‘We agree to finance your purchases of wool not to exceed $20,000 at any one time, in return for the cash discount of 2% which we understand you can obtain from your wool dealers.
‘In liquidating your indebtendness to us occasioned by this financing of wool purchases, we understand that we are to credit your account on our books with 50% of the 90% of accounts receivable which we would normally pay to you each week, as detailed in our letter of May 13th.
‘Accepted:
‘East Wilton Woolen Mills,
‘W. W. Capers, Pres.’
On May 14, 1920, the president of the company, one Capers, showed this letter to the plaintiff who, relying on its terms, entered into a contract with the company for the sale of a large quantity of wool; after examining samlples, Capers selected a certain number of bage which included the wool described in the second count, and the other shipments for which the plaintiff received payment. The prices were agreed upon and the wool not shipped was placed in a warehouse in the plaintiff's name, to be delivered at such times as the company might direct. The agreed price for the entire lot was about $24,000.
On May 21, 1921, the defendant sent the company a letter asking it to write him to the effect that wool for which he paid would be his property until any balance due thereon was liquidated under their agreement. On May 24 the company replied, assenting to the request contained in the defendant's letter of May 21. On May 26 the defendant wrote the plaintiff that, on the previous day he had forwarded a check to him in payment for the latter's bill for wool shipped to the company. This letter stated that he had received a request from the company for a duplicate invoice, and asked the plaintiff to render all future bills in duplicate to the company.
It appears that between May 13, 1920, the date of the first letter above referred to, and June 18, 1920, that is, on May 15, 27, 28, and also on July 10, the plaintiff shipped several lots of wool to the company and received in payment the defendant's check, which was sent direct to the plaintiff New York The rest of the wool was kept in a warehouse subject to the orders of the company. On June 18 the defendant wrote the company requestion that on future purchases made by the latter the goods be billed to the defendant and then consigned to the company, the same to remain the property of the defendant until paid for. The presiding judge found that this letter was shown to the plaintiff soon after it was written; and on July 10, 1920, the plaintiff shipped a lot of wool to the company and, in compliance with the defendant's letter of May 26, sent an invoice of the shipment to the defendant; on July 21 the latter wrote the plaintiff acknowledging receipt of the invoice and inclosed his check for the amount thereof.
On July 29 the plaintiff shipped to the company the wool described in items 1, 2 and 3 of the account annexed to the declaration marked ‘A,’ and on July 30 the wool described in items 4 and 5 of the same account annexed; all of which was delivered at the mill. The plaintiff billed the goods to the defendant and forwarded to him at New York invoices for the shipments made on each date; and sent duplicates of these invoices to the company. The invoices are printed in the record. On July 30 the defendant wrote the company:
On August 13 the plaintiff sent the defendant the following letter:
+---------------------------------------------+
¦”We shall be glad to receive a check for bill¦
+---------------------------------------------¦
¦of July 29 for ¦$4,114.00 ¦
+---------------------------+-----------------¦
¦July 30 ¦$1,668.60 ¦
+---------------------------+-----------------¦
¦ ¦_______ ¦
+---------------------------+-----------------¦
¦ ¦$5,782.60 ¦
+---------------------------------------------+
* * *’
In reply, the defendant on August 14 wrote:
On the same day he wrote to the company that he had received a request from the plaintiff for payment of their bills of July 29 and 30; that payment of them would cause him to pass the limit of $20,000 allowed in the wool account; and he requested that no more wool be bought until the account was reduced. The letter also stated:
‘When you have O. K.'d these bills for payment please forward them to the writer and we will take up the question of payment with Mr. Gaunt.’
In response to a request for payment of the bills made by the plaintiff by letter dated August 24, the defendant by letter of the same date denied liability. It appears from the report that on November 9, 1920, the company made an assignment of all its property for the benefit of creditors, which was assented to by both defendant and plaintiff; the assent by the plaintiff expressly stated that the indebtedness arising out of the transactions involved in this action was excluded from such assent, as the plaintiff claimed to hold the defendant therefor.
It further appears from the findings of the court that on November 15, the plaintiff moved to the mills seventy-seven bags of wool taken from the warehouse where they had been stored with those previously shipped; they were invoiced to the defendant, who refused to accept them. This wool is the same charged to the defendant in count 2, account annexed B of the plaintiff's declaration.
Upon this record and the reasonable inferences to be drawn therefrom the judge was warranted in finding that the relationship between the company and the defendant in purchasing the wool in question was not that of principal and agent. He was also warranted in finding that there was not a novation by which the defendant was substituted for the company as a debtor of the plaintiff. The judge found that the plaintiff charged the company on its books for all the goods which he shipped, except those sent on November 15,...
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