W.T. Tilden Co. v. Densten Hair Co.

• Decision Date: 09 January 1914
• Citation: 103 N.E. 916,216 Mass. 323
• Parties: W. T. TILDEN CO. v. DENSTEN HAIR CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 323

103 N.E. 916

W. T. TILDEN CO. v. DENSTEN HAIR CO.

Supreme Judicial Court of Massachusetts, Essex.

January 9, 1914

COUNSEL

Powers & Hall and J. Colby Bassett, all of Boston, for complainant.

Mayberry Hallowell & Hammond, of Boston, for respondent.

OPINION

BRALEY J.

The defendant excepted to the master's report because of his general conclusion, from facts previously found, that it had violated the contract. But the exceptions are not well founded. It was still a question of fact even if deducible from other facts which could be properly treated as evidence on the principle issue, whether the defendant had failed in performance. Jones v. Keen, 115 Mass. 170, 181; Perry v. Pye, 215 Mass. 403, 102 N.E. 653. No exceptions having been saved by the plaintiff, the question for decision is whether upon the report and supplemental report the bill can be maintained. The plaintiff asked specific performance of a contract for the delivery, during the term of one year, of the defendant's entire production of 'washed brown calf hair' of a standard or quality alleged in the bill to be defined in the letter written by the plaintiff, and accepted by the defendant. But the letter fails to state the standard. The only reference to the grade of hair is found in the words 'standard as has been agreed upon between us,' and under the general phrase 'all other conditions same as contract now in force,' all undefined terms required to complete the contract as understood by the parties are included. Hebb v. Welsh, 185 Mass. 335, 70 N.E. 440.

It appears from the report that the contract for the preceding year, which by reference forms part of the contract in suit covered 'washed brown calf hair,' to be 'separated into whatever grades' the plaintiff desired, and to ascertain the grades parol evidence became admissible. Lipsky v. Heller, 199 Mass. 310, 85 N.E. 453; Graves v. Broughton, 185 Mass. 174, 69 N.E. 1083. The master accordingly found on the evidence before him, that the words 'calf hair' have a well defined trade meaning, and having been so employed by the parties the general trade usage formed part of the agreement. Barrie v. Quinby, 206 Mass. 259, 264, 265, 92 N.E. 451. The defendant is shown by the report to have been engaged in the production of washed animal hair. It took the hair not only of calves, but of other cattle, as well as of colts as it came from the hide, and by cleansing and assorting prepared the hair for the market. The difference in the finished product between calf hair and the other varieties is found to have been so slight that competent experts differed as to the proper classification. The general conclusion, that the defendant is willing and able to tender full performance, forces the plaintiff to rely upon a sale by the defendant of three car loads of hair to other parties as being sufficient to show a violation of the contract. But the master also finds that this sale consisted of hair within the questionable or uncertain grade, and that the defendant has acted in good faith.

The whole tenor of the report also shows that the true construction of the contract, when read in the light of the circumstances, as a whole is doubtful. Where this appears there is no better...