Tritsch v. Ayer Tanning Co.
Decision Date | 27 June 1944 |
Citation | 56 N.E.2d 11,316 Mass. 598 |
Parties | MANJA TRITSCH v. AYER TANNING COMPANY, INC. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 4, 1944.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & WILKINS, JJ.
Contract, What constitutes. Evidence, Extrinsic affecting writing.
At the trial of an action of contract for goods sold and delivered, where it appeared that correspondence between the parties did not constitute their complete contract, testimony offered by the defendant properly was admitted to show the remainder of the contract, to explain ambiguous features of the undertakings of the parties as set out in the correspondence, and to show that the contract was not a contract of sale.
CONTRACT. Writ in the Superior Court dated February 9, 1943. The case was tried before O'Connell, J.
A. M. Ginzberg, for the plaintiff.
H. L. Barrett, (F.
J. Cloutman with him,) for the defendant.
The plaintiff, as undisclosed principal, brings this action of contract for goods sold and delivered, namely, certain sheepskins called shearlings. The defendant denies that there was a sale, but alleges that the arrangement was one whereby the defendant was to tan and sell the sheepskins to a customer previously found and out of the proceeds was to make payments to the plaintiff. The jury returned a verdict for the defendant.
The plaintiff's exceptions to the admission of evidence and to the denial of requests for rulings raise the question whether certain correspondence between one Freedman, the plaintiff's agent, and the defendant constituted a complete, unambiguous contract of sale which could not be added to or explained by parol evidence.
If the defendant was not precluded from showing by oral testimony that the agreement was not for a sale, there was ample evidence from which the jury could find that the understanding was that the skins were to be tanned at the defendant's plant at Ayer under the direction of one Hoffner, a friend of Freedman, and then were to be shipped to the Nashua Slipper Company at Lowell, to which they had already been sold by Hoffner; that the Nashua Slipper Company was to pay the entire purchase price to the defendant, which was to forward to Freedman seventy-five cents for each large, and forty-five cents for each small, skin, pay ten per cent to Hoffner for his services, and retain the balance for the use of its tannery and equipment; that a promissory note from the defendant to Freedman intended by way of security was never given because some skins, after being processed, were sent to the Nashua Slipper Company, which returned them without payment; that Hoffner disappeared, and the defendant told Freedman to remove the skins; and that Freedman took a few skins as samples in an unsuccessful effort to make another sale.
Both Freedman and Burns, the treasurer of the defendant, testified that Hoffner informed Burns at the outset that Hoffner had already sold the skins to the Nashua Slipper Company, and, according to Burns, exhibited a "written document verifying the sale." The correspondence upon which the plaintiff relies as constituting the contract must be read in the light of this undisputed fact. The first letter dated July 27, 1942, from the defendant to Freedman read as follows: The testimony of Freedman was to the effect that this was not acceptable to him and he declined to sign it. On August 8 the defendant wrote Freedman: The second paragraph was in error, and by telegram on August 11 Freedman brought this to the attention of the defendant, which on the same day telegraphed back: "Second paragraph of our letter of Aug 8th should read as follows: Our promissory note for the value of the above merchandise on receipt of invoice for maturity of no more than three months but with the expressed provision that note will be met before maturity when collection is made from customer or customers for this merchandise Ayer Tanning Co. Inc." On August 18 Freedman wrote that the defendant: ...
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