Warner Sugar Ref. Co. v. Metro. Wholesale Grocery Co.

• Decision Date: 09 July 1924
• Docket Number: No. 5814.,5814.
• Citation: 125 A. 276
• Parties: WARNER SUGAR REFINING CO. v. METROPOLITAN WHOLESALE GROCERY CO.
• Court: Rhode Island Supreme Court

125 A. 276

WARNER SUGAR REFINING CO.

v. METROPOLITAN WHOLESALE GROCERY CO.

No. 5814.

Supreme Court of Rhode Island.

July 9, 1924.

Exceptions from Superior Court, Providence and Bristol Counties; Antonio A. Capotosto, Judge.

Action by the Warner Sugar Refining Company against the Metropolitan Wholesale Grocery Company. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

Edward C. Stiness, Daniel H. Morrissey, and Francis J. O'Brien, all of Providence, for plaintiff.

McGovern & Slattery and Fred B. Perkins, all of Providence, for defendant.

SWEETLAND, C. J. This is an action of the case in assumpsit to recover damages for the defendant's alleged breach of a contract for the purchase of sugar from the plaintiff.

The case was tried before a justice of the superior court sitting with a jury and resulted in a verdict for the plaintiff. Without filing a motion for new trial the defendant duly prosecuted a bill of exceptions to this court, stating therein exceptions to certain rulings of said justice, made in the course of the trial. At the hearing before us the defendant relied only upon the fourth exception stated in its bill.

The alleged contract, which is the basis of the plaintiff's claim, was for the sale and delivery of sugar of the value of over $6,000. The plaintiff's right of recovery is affected by the provisions of the statute of frauds with reference to the sale of goods. The act provides that a contract concerning the sale of goods of over $500 value shall not be enforceable by action, unless the buyer accept and receive part of the goods, or give something in part payment, or give something in earnest to bind the contract, "or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf." Section 4 (1), c. 305, General Laws 1923. The last provision of the paragraph quoted is pertinent to the matter here.

The firm of Arthur L. Johnson Company acts as a merchandise broker in Providence. The plaintiff is a corporation engaged in the business of refining sugar in New Jersey, with a place of business in New York City. The defendant is in the wholesale grocery business in Providence. One of the issues of fact raised by the evidence is whether in the transaction in question the Johnson Company was acting as agent of the defendant or as a broker for the plaintiff.

The plaintiff introduced the following letter of the defendant, claiming it to be the defendant's offer in writing, signed by the defendant, which the plaintiff accepted, and which constituted a written memorandum of the contract in accordance with the requirement of the statute:

"June 24, 1920. "Arthur L. Johnson Company, 81 Dyer Street, Providence, R. I.—Gentlemen: Replying to your letter of the 23d, we wish that you would place our order for 75 barrels of fine granulated sugar August and September shipment at twenty-four cents a pound. We would like to have twenty-five barrels 15% 100-pound sacks and the balance in two-pound packages. "Yours very truly,

"Metropolitan Wholesale Grocery."

The exception of the defendant upon which it now relies is to the following instruction of the justice to the jury:

"Now in this case the party to be charged, if any party is to be charged, is the defendant, the Metropolitan Wholesale Grocery Company, and on its letter head of the 24th day of June, 1920, it states in substance its offer of what it desires, namely, 75 barrels of fine granulated sugar, August and September shipment, 24 cents per pound, and further goes on and says, that they would like it in 25 barrels, 15 per cent. in 100-pound sacks and the balance of 2-pound packages. Signed by the Metropolitan Wholesale Grocery Company. If you find that this offer was accepted, either through Mr. Johnson as broker, or by the Warner Sugar Refining Company in the ordinary course of business, the Warn Sugar Refining Company thereby binding itself to carry out this order, then I say to you, Mr. Foreman and gentlemen, that this is a...