Wagman v. Ziskind

• Decision Date: 09 January 1920
• Citation: 234 Mass. 509,125 N.E. 633
• Parties: WAGMAN et al. v. ZISKIND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 509

125 N.E. 633

WAGMAN et al.

v.ZISKIND.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 9, 1920.

Exceptions from Superior Court, Essex County; Frederick Lawton, Judge.

Action by Louis Wagman and others against David Ziskind. Verdick for plaintiffs, and defendant excepts. Exception sustained.Robert E. Burke and Edward E. Crawshaw, both of Newburyport, for plaintiffs.

James J. Kerwin and James C. Reilly, both of Lowell, for defendant.

JENNEY, J.

A contract was made on or about June 1, 1917, for the sale by the plaintiffs to the defendant of the ‘scrap metal’ then in the plaintiffs' yard in Newburyport at ‘a flat rate of $1.10 cwt. f. o. b. the yard, metal to be loaded by the defendant.’ In July differences arose, the defendant claiming that the plaintiffs had included in their shipment iron not in their yard when the contract was made and refusing for that reason to accept further deliveries. There was evidence that the plaintiffs then shipped the iron in controversy by freight to the defendant at Lowell; and it further appeared in evidence, without objection, that the plaintiffs on August 4, 1917, received a letter from the freight agent notifying them that the defendant had refused to accept it. On the same day, one of the plaintiffs by telephone asked the defendant the cause of the rejection, and the defendant replied that he ‘was going to write about it’; and under date of August 7, 1917, he wrote the plaintiffs the following letter:

‘Referring to conversation you had with our Mr. Jacob Ziskind, in reference to car of Iron that is on track is Lowell, beg to say that if you will allow us to pick out all of the Iron that is of any use to us, we will allow you the best possible price we can for it.

‘If this is satisfactory to you, write us by return mail, and we will accommodate you by doing same immediately.’

The letter contained no statement as to the reason why the defendanthad not accepted the metal, and it proposed the substitution of a contract entirely different from that originally made. This offer, if accepted, would have resulted in the settlement of the differences under the original contract. Such a proposition was not an admission of liability but it contained the statement that the car was ‘on track in Lowell.’ So far as the record shows, it was not conceded that the car had arrived in Lowell and that the defendant had knowledge thereof. The letter was admissible to prove these relevant facts, although made as a part of an offer of compromise. Dickinson v. Dickinson, 9 Metc. 471. No objection was made except to the letter as a whole. If the defendant had desired that any part of it should be withheld, or that its use should be restricted, he should have so requested. Everson v. Casualty Co. of America, 208 Mass. 214, 94 N. E. 459.

On...