Stephenson v. Cady

• Decision Date: 11 January 1875
• Citation: 117 Mass. 6
• Parties: George A. Stephenson v. Resolved W. Cady
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 6

George A. Stephenson v. Resolved W. Cady

Supreme Court of Massachusetts

January 11, 1875

Argued November 12, 1874

Suffolk. Contract for non-delivery of yarn under the following agreements in writing, each of which was signed "Greystone Mills, Zebulon Whipple, Agent."

"Boston October 23, 1871. Sold Stephenson & Co., Agents, three thousand pounds 12 1/2 yarn at 31 1/2 cents per lb. Cash on delivery. Also, two thousand pounds 12 1/2 yarn at 31 1/3 cents per lb., cash on delivery, deliverable at my option or not, as I think best. Yarn to be same quality and twist as sold them heretofore, to be delivered on cars at Providence as before."

"Boston November 14, 1871. Sold Stephenson & Co., Agents, five thousand pounds No. 12 1/2 yarn at 31 cents, cash on delivery; to be delivered on board cars at Providence, at the rate of twelve hundred pounds per week, to commence as soon as the 2,500 lb. 12 1/2 now due them has been shipped quality as heretofore."

"Boston, November 25, 1871. Sold Stephenson & Co., Agents, three thousand pounds twenty-six two-ply yarn at 40 cents per pound, and five thousand pounds twelve two-ply yarn at 32 cents per lb., to be delivered on cars at Providence; quality as heretofore; cash on delivery; 1 % off; all to be delivered before January 1, 1872."

Trial in the Superior Court, before Brigham, C. J., without a jury, who allowed a bill of exceptions in substance as follows:

The defendant made with the plaintiff the contracts alleged in the declaration; and between October 24, 1871, and November 28, 1871, made nineteen deliveries of yarns under the second and third contracts,--all of the yarns required under the first contract, excepting 445 pounds, and 496 1/4 pounds of twenty-six two-ply yarns under the third contract,--and upon these deliveries, which were accompanied by bills of each parcel delivered, marked "cash," the defendant drew thirteen sight drafts on the plaintiff, for sums of from $ 150 to $ 400, all of which drafts were duly paid by the plaintiff, excepting a draft for $ 400 drawn by the defendant on the plaintiff, on November 29, 1871, refused acceptance on December 2 following, and payment on December 5 following, by the plaintiff, and duly protested for non-acceptance and non-payment. The drafts were not drawn for the exact sum due at the time, but for sums approximating to the sums then due.

The plaintiff and the defendant accounted together in the matter of the deliveries and payments on November 25, 1871, and their accounts to that date were then settled by an "allowance" to the plaintiff of $ 20.40, and his payment of $ 19.84 in cash to balance the accounts.

On November 27 and 28, 1871, the defendant made deliveries of yarns under the contracts to the plaintiff, the contract prices of which were $ 260.71 and $ 148.81, and thereupon drew the draft of $ 400 on the plaintiff, and the same was refused acceptance as aforesaid.

The defendant's mill, in which the yarns had been and were expected to be manufactured, was burned on the morning of December 1, 1871.

On December 2, 1871, the plaintiff sent to the defendant's agent in the contract, Zebulon Whipple, the following letter:

"Boston, December 2, 1871. Z. Whipple, Agent Dear Sir: We were very much pained and surprised last night to notice by the paper that the Greystone Mills were burned yesterday morning, though we are glad to notice they were well insured. We see you owe us some 10,500 lbs. 12 1/2, and 2,500 lbs. 26 1/2 yarn, on contract. This yarn is sold or engaged, and we look to you to deliver it. Please let me know what arrangement you are making to do so. Under these circumstances, we have not paid your draft for $ 400. We hope you can arrange to send us some 2,500 lbs. 12 1/2 per week, that quantity being required to complete the contract by January 1. Yours truly, Stephenson & Co., Agents."

On December 8, following, Whipple called upon the plaintiff in Boston, to pay the price of the parcels of yarn delivered to him on November 27 and November 28, and the plaintiff refused to pay the same unless the defendant would give him security for the entire fulfilment of the contracts; Whipple thereupon declared to the plaintiff that the defendant was under no legal obligation to fulfil the contracts, inasmuch as the plaintiff had violated them by refusing to accept or to pay the draft of $ 400. Thereupon, Whipple sued out of the Superior Court a writ in favor of the defendant against the plaintiff in an action of contract for the price of the yarns delivered to the plaintiff on November 27 and on November 28 and was proceeding to attach the plaintiff's stock in trade, when the plaintiff, to avoid the service of the writ by attachment, paid to him the sum of $ 409.52, the full price of the yarns delivered on November 27 and on November 28. Whipple and the plaintiff then parted angrily, and without any agreement or understanding as to further deliveries of yarn under the contracts, the plaintiff claiming a right to such deliveries, and the defendant denying such right, and no communication was had between them until on January 4, 1872, the plaintiff caused to be delivered to Whipple the following letter: "Boston, January 3, 1872. Z. Whipple, Agent. Dear Sir: We want all the yarns due us on our contracts with you, and we again call on you to deliver the same. The delay in sending them...