Townsend v. Hargraves

• Decision Date: 17 September 1875
• Citation: 118 Mass. 325
• Parties: John Townsend v. Edward Hargraves
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 325

John Townsend v. Edward Hargraves

Supreme Court of Massachusetts

September 17, 1875

Argued November 13, 1874 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Contract to recover the price of thirty-seven bales of wool. The declaration contained two counts: one upon an account annexed, and the other a common count for goods sold, and interest thereon. The answer admitted the defendant's liability for eighteen of the bales, valued at $ 3889.08, and, as to the rest, denied the allegations of the declaration and pleaded the statute of frauds. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows:

The plaintiff's evidence tended to prove the following facts: The plaintiff, on November 1, 1872, was the owner of three distinct lots of wool, the first consisting of twenty-two bales, of the grades known as "extra" and "super"; the second of fifteen bales, fourteen of them of the grade known as No. 1, and one bale of black wool; and the third of twenty-eight bales of an inferior quality; each bale being numbered and stamped with its weight. He had in his office in Boston samples of the three lots, all of which were in the store of one Williams, a broker in wool, who took them on storage, but who had given no storage receipt. On that day, the defendant, who resided at Great Falls, New Hampshire, and had a woollen mill in Maine, the route to which was over the line of the Eastern railroad, by which he was in the habit of receiving the wool to be consumed at the mill, called upon the plaintiff at his office, to purchase wool, inspected samples, and agreed by parol to take the first two lots of the plaintiff's wool, represented by two of the samples, by the lot, at the rate of fifty-four cents per pound for the first, and forty-four cents per pound for the second, those being the prices at which the plaintiff offered them, the terms of the sale being that the defendant should give his note for the amount on four months at seven per cent. interest. The quantity and total price of the wool was not then definitely stated, but the defendant agreed to take the wool at the weight given in the invoices by which the plaintiff had brought it, being the weights stamped on the bales. The wool thus on storage had never been seen by the plaintiff, he having bought it by sample at invoice weights, and was never afterward seen by him, nor shown to the defendant at the time; but the plaintiff at the time of the purchase told the defendant where it was.

The plaintiff and the defendant had been in the habit of dealing together before, and the defendant had a subsisting arrangement with the Eastern Railroad Company to do his freighting for a certain price. It was the custom of the company, on receipt of an order, to send for freight in Boston to be transported over its railroad, and in accordance with this custom, it had been its habit on such notice to send for wool purchased by the defendant in Boston on previous occasions, and to charge him with the cost of carting it from the warehouse in Boston to the depot, which he had always paid, this charge being in addition to the charge for freight. The plaintiff had been in the habit of leaving an order with the company to call for wool sold by him to the defendant, and, as he testified, started immediately after the sale to leave such an order; but the defendant said, "Wait till tomorrow morning, and see if we cannot get off a little of it," meaning thereby to try to get it off sooner than the railroad wagons would take it.

The next morning the plaintiff and the defendant met Williams in the street, and the plaintiff, in the defendant's presence, told Williams that he had sold all the wool in his warehouse; that he had sold the thirty-seven bales to the defendant, and the twenty-eight bales to one Tibbetts, adding "It is their wool." Williams asked whether the defendant wanted his wool weighed, and the plaintiff answered that he took it by invoice weights. The defendant in his testimony denied that any such interview took place in his presence.

Afterward, on the same day, the plaintiff and the defendant went to the plaintiff's office, where the defendant spoke of getting a horse and wagon to take a little of the wool, and the plaintiff replied that this was impossible on account of the horse disease, adding that he was going away the next week, and that the defendant had better get Williams to ship his wool if he wanted it shipped. The defendant in his testimony denied that this conversation took place.

Shortly after this conversation Williams came in, and asked the defendant if he was in a hurry for the wool, and was told by him that he was in a hurry for a portion of it; Williams offered to furnish wagons himself to cart to the Eastern Railroad Company such of the wool as the defendant was in a hurry for; and thereupon the defendant gave him instructions about it, telling him to send a part of it by his wagons and charge the cartage to him, and the balance by the Eastern Railroad Company. After this the plaintiff himself did nothing in regard to the shipment of the wool. Williams, on or about November 4, caused six bales of the wool to be sent by his own wagon to the Eastern Railroad Company's freight house, in Boston, for the defendant, and caused an order to be left with the Eastern Railroad Company to call at his store for ten bales more of the wool. This order was given to the Eastern Railroad Company on or about November 5, but was not executed until November 9, when twelve bales were taken by the railroad company, and the remaining nineteen bales not taken away, for which no order was given to the railroad company, were burned during the night following in the store of Williams, where they had remained since the agreement was made. Williams reported by letter to the defendant the steps he had taken in reference to forwarding the wool. The plaintiff's evidence also tended to show that the defendant received the six bales on or before the night of November 8, at his mill, and the twelve bales subsequently.

The plaintiff testified that on the morning of November 9, he saw the defendant at his residence, in New Hampshire; that the defendant said he had received the six bales, and that twelve bales more were on their way, and that he had received the plaintiff's bill for the whole wool, which was the bill in suit; that the plaintiff asked him if the bill was right, and said he wanted his note for the amount of the bill by the following Wednesday; that the defendant replied that he would either send it or bring it by that time. The defendant denied this conversation, and testified that at the time of the fire, none of the eighteen bales shipped to him by the railroad before the fire, had, to his knowledge, arrived at his mill or been seen by him. This fact was not conceded by the plaintiff.

The judge, in charging the jury upon that part of the defence which denied that the contract as to delivery was fulfilled by the plaintiff, or any one in his behalf, instructed the jury as follows: "If it was a part of the contract that the plaintiff, before it should be considered as a completed contract between them, was to deliver these goods to the Eastern Railroad Company or leave an order with it to come and take them, and it was not done, it is not a compliance with the contract. The claim of the plaintiff is, that by the consent of the defendant, it was understood between them that Williams, who was the storekeeper of the wool, was to take and did take control of that part of it, and if he did not give the order to the Eastern Railroad, or only gave an order for ten bales, that is not the fault of the plaintiff. That would be so, although it might be understood that an order was to be left with the Eastern Railroad Company to take this wool, or to come and take this wool, so that a delivery to it would be considered as a delivery to the consignee, as between these parties; still if, at the time, it was understood that Williams was to attend to and he accepted that part of the responsibility, that relieved the plaintiff; and if Williams did not see fit to give this order to the Eastern Railroad Company, or only gave an order for ten bales instead of the whole, then so far as the plaintiff is concerned, and upon the first question involved in the case, whether the plaintiff did all that was necessary to be done under the terms of the contract, as between him and the defendant, the plaintiff would be relieved. So that the first inquiry simply will be whether the plaintiff did do all that he was obligated to do by the terms of the contract. You have the statement of Williams and of these parties of these various conversations, and you are to say whether that was the understanding at the time or not; if it was, although Williams might not have done it, the plaintiff is relieved from doing it, and the defendant would be liable. The whole question, so far as that branch of the case is concerned, is this: If it was a part of the contract that the plaintiff was to give this order to the Eastern Railroad Company he should do so, unless it was agreed between the plaintiff and the defendant that that responsibility should devolve upon Williams; and if so, that relieved the plaintiff."

The judge was requested by the defendant to instruct the jury as follows: "If the plaintiff, by the contract of sale made on Friday, November 1, 1872, was to forward the goods to the defendant at once or in the early part of the week following and failed so to do as to a part of the goods, by reason whereof such part was destroyed by fire on the night of November 9, 1872, the plaintiff cannot recover for the part so destroyed by...