Schmoll Fils & Co. v. Wheeler

• Decision Date: 11 July 1922
• Citation: Schmoll Fils & Co. v. Wheeler, 242 Mass. 464, 136 N.E. 164 (Mass. 1922)
• Court: Supreme Judicial Court of Massachusetts
• Parties: SCHMOLL FILS & CO. v. WHEELER.

242 Mass. 464

136 N.E. 164

SCHMOLL FILS & CO.

v.WHEELER.

Supreme Judicial Court of Massachusetts, Suffolk.

July 11, 1922.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Action by Schmoll Fils & Co. against Paul Wheeler for damages for failure to accept and pay for horse hides sold by plaintiff to defendant. Finding for plaintiff, and defendant brings exceptions. Exceptions overruled.

Edward O. Proctor, of Boston (Sherman L. Whipple, of Boston, of counsel), for plaintiff.

Brown, Field & McCarthy, of Boston (La Rue Brown, of Boston, of counsel), for defendant.

BRALEY, J.

This is an action of contract to recover damages for the failure of the defendant to accept and pay for certain horse hides, described in the record as ‘horse butts,’ alleged to have been purchased of the plaintiff. The exceptions to the admissionof evidence not having been argued may be treated as waived, leaving for decision the questions, whether any contract between the parties was proved, and if a contract was consummated, whether it is unenforceable because of the statute of frauds, which is duly pleaded. The case was tried without a jury, and on the evidence the judge was warranted in making the following findings. The plaintiffs, doing business in Chicago, Ill., as dealers in horse hides, were represented in Boston by one Needham, with whom the defendant, a dealer in leather in Boston, agreed to buy of the plaintiff ‘one thousand butts at varying prices according to certain standards'; the total amount being $4,105.88. The time when the defendant's order was accepted, and when the agreement was finally concluded, ‘can be fixed as April 7, 1920,’ which was the date of the plaintiff's letter to Needham, ‘informing him that they would ship the butts to the place designated by the defendant.’ The butts were delivered to the carrier at Chicago ‘on either May 17th or 18th; it was difficult to determine which from the bill of lading.’ While the butts were in transit the defendant notified the plaintiff by telegram that, not having been promptly shipped, ‘he refused to receive them.’ The butts ‘which were sent cash on delivery’ arrived June 1st and the defendant in accordance with his telegram declined to accept, and they were returned to the plaintiff, which at the time of the trial held possession, exercising the rights of an owner.

[1][2][3] We assume that the contract was made here and the legal rights of the parties are governed by our laws. American Malting Co. v. Souther Brewing Co., 194 Mass. 89, 80 N. E. 526;Garvan v. New York Central & Hudson River Railroad, 210 Mass. 275, 280, 96 N. E. 717. See Kline v. Baker, 99 Mass. 253. It appears that no time for performance was fixed by the parties, and the plaintiff accordingly had the burden of proving that it tendered delivery within a reasonable time. It was a question of fact on all the evidence, and the finding that the plaintiff was not in default in failing to ship earlier, not having been unwarranted, cannot be set aside as matter of law. Sales Act (St. 1908, c. 237) § 43, subsec. 4; American Malting Co. v. Souther Brewing Co., supra; Nickerson v. Bridges, 216 Mass. 416, 420, 103 N. E. 939. The contract was completed when transfer of possession was tendered, and the price then became due and payable. Sales Act, §§ 3, 19, subsec. 5; Haskins v. Warren, 115 Mass. 514, 533.

The defendant's second request, that there is no evidence of any contract as alleged in the declaration, and the fifth request, there is no evidence that the plaintiff performed its part of the contract, were refused rightly. By section 4:

‘A contract to sell or a sale of any goods * * * of the value of five hundred dollars or upwards shall not be enforceable by action unless * * * some note or memorandum in writing of the contract or sale be signed by the parties to be charged or his agent in that behalf.’

The effect of the statute is to require certain evidence to prove that a contract has been made; and a contract can exist at common law independently of the statute. Townsend v. Hargraves, 118 Mass. 325, 332; Norton v. Simonds, 124 Mass. 19. It is settled that a letter or several letters relating to the subject-matter may constitute a sufficient memorandum. Williams v. Smith, 161 Mass. 248, 252, 37 N. E. 455;Nickerson v. Weld, 204 Mass. 346, 356, 90 N. E. 589. The question is one of fact, and the judge has found for the plaintiff. Williams v. Smith, supra.

It therefore becomes necessary to review the evidence to ascertain whether his conclusion was justified. The correspondence shows that on May 20, 1920, the plaintiff wrote the defendant inclosing an itemized invoice of the butts with prices and terms of shipment, and stating that the goods had been shipped, and a ‘draft on you for the amount of invoice payable on arrival of shipment has been drawn and forwarded.’ The defendant replied May 22d, acknowledging receipt of the letter and as ‘the butts,’ meaning these butts, were not shipped promptly declined to accept them. June 1st the plaintiff's agent wrote the defendant, requesting him ‘to advise whether you intend to take these butts in accordance with the conditions of the purchase, and our confirmation of sale by letter of April 13th.’ The letter of April 13th, thus incorporated by reference, was signed in the name and behalf of the plaintiff by Needham. It stated in substance.

‘We beg to confirm the conversation of the writer with you to-day offering you 10,000 green salted horse butts * * * and confirm your instructions' as to their shipment.

The defendant replied to the letter of June 1st:

‘I have already informed your Chicago...