W.R. Grace & Co. v. Nat'l Wholesale Grocery Co.

• Decision Date: 27 February 1925
• Citation: 146 N.E. 908,251 Mass. 251
• Parties: W. R. GRACE & CO. v. NATIONAL WHOLESALE GROCERY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 251

146 N.E. 908

W. R. GRACE & CO.

v.NATIONAL WHOLESALE GROCERY CO.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 27, 1925.

Exceptions from Superior Court, Bristol County; Lummus, Judge.

Action of contract by W. R. Grace & Co. against the National Wholesale Grocery Company to recover damages for breach of contract for purchase of sugar. Case referred to auditor, who found for defendant. On plaintiff's appeal and exceptions. Appeal dismissed, and exceptions overruled.

Wood & Brayton, of Fall River, and Donald Havens, of New York City, for plaintiff.

D. R. Radovsky, H. W. Radovsky, and I. H. Simon, all of Fall River, for defendant.

RUGG, C. J.

This is an action of contract to recover damages for breach of contract in refusing to take and pay for sugar. The parties entered into a contract in writing whereby the plaintiff sold and the defendant bought about eighty tons of ‘Brazilian washed sugar,’ to be shipped from Brazil. The defendant refused to accept the sugar tendered by the plaintiff in performance of the contract. The case was referred to an auditor ‘to hear the parties and their evidence and report his findings to the court, and his findings of fact shall be final.’ Motion to recommit the auditor's report was denied. The report was confirmed and judgment entered in favor of the defendant.

[1] Motion to recommit the report is a proper method to raise question as to the correctness of rulings concerning the admission or exclusion of evidence where the auditor's findings of fact are final. Tripp v. Macomber, 187 Mass. 109, 72 N. E. 361;Pettey v. Benoit, 193 Mass. 233, 79 N. E. 245. In all other respects such a motion is addressed to sound judicial discretion. Randall v. Peerless Motor Car Co., 212 Mass. 352, 370, 372, 99 N. E. 221.

The auditor found that the defendant was jusitified in rejecting the sugar on two separate and distinct grounds: (1) That the plaintiff tendered an amount of sugar in excess of the quantity ordered; and (2) that the quality of the sugar offered for delivery was not in conformity with the contract. In our view of the case, it is necessary to consider only the questions of law touching the second ground.

The finding of the auditor was that the testimony did not convince him that Brazilian washed sugar is a descriptive term, sufficient without more to identify the article sold. The recitals of evidence in the report adequately show such diversity of testimony as to warrant that conclusion and to support the further finding that:

‘Brazilian washed sugar is not such an article as would be known or recognized by that description merely, so as to enable one to determine what would be a proper fulfillment of the contract without further evidence.’

[2] It thus appears that there was an ambiguity about the application of the words written in the contract to its subject-matter. The governing rule of law on such facts is that, for the purpose of removing or explaining an uncertainty or ambiguity of that nature, parol testimony is admissible and has a legitimate function. If previous negotiations make manifest the sense in which the terms of the contract are used, resort may be had to such negotiations as affording the best definition of the actual intention of the parties. The subject-matter of the contract may be identified by proof of whatever was before the parties while they were bargaining. If the sale were by sample, or if a sample were shown, it or a description of it would be competent upon the issue whether the article tendered corresponded with that described in the contract. Stoops v. Smith, 100 Mass. 63, 66,1 Am. Rep. 85, 97 Am. Dec. 76;Miller v. Stevens, 100 Mass. 518, 1 Am. Rep. 139, 97 Am. Dec. 123;Pike v. Fay, 101 Mass. 134;Keller v. Webb, 125 Mass. 88, 89,28 Am. Rep. 209;Strong v. Carver Cotton Gin Co., 197 Mass. 53, 59, 83 N. E. 328,14 L. R. A. (N. S.) 274,14 Ann. Cas. 1182;West End Manuf. Co. v. Warren Co., 198 Mass. 320, 324, 84 N. E. 488;Avondale Mills v. Benchley Bros., Inc., 244 Mass. 153, 157, 138 N. E. 586.

[3] The auditor appears to have followed this rule both in reaching his main conclusion and in the evidence which he received. The evidence as to sample used by the broker of the plaintiff and as to his representations concerning it at the time of making the contract was rightly admitted and dealt with correctly.

There is nothing to indicate that the...