Welch v. Bombardieri

• Decision Date: 17 April 1925
• Citation: 147 N.E. 595,252 Mass. 84
• Parties: WELCH et al. v. BOMBARDIERI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 84

147 N.E. 595

WELCH et al.

v.BOMBARDIERI.

Supreme Judicial Court of Massachusetts, Suffolk.

April 17, 1925.

Report from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Edward L. Welch and another, copartners doing business as the Crescent Milling Company, against Pietro Bombardieri. On report, after court's exclusion of particular evidence. New trial granted.J. W. Lowrance, of Boston (J. L. Hurley, of Boston, of counsel), for plaintiffs.

H. E. Perkins, of Boston (G. A. McLaughlin, of counsel), for defendant.

WAIT, J.

The plaintiffs sue for damages caused by breach of an agreement to purchase 310 barrels of flour. They put in evidence a writing, Exhibit 1, bearing date September 15, 1920, on a form called a ‘Resale Order,’ such as was used while the United States Food Administration was in control of the sale of foodstuffs, which set out that, subject to confirmation, the plaintiffs sold to the defendant for shipment within 60 days and delivery within three months at mill's option, payment on arrival at Boston, 260 barrels of Fairfax brand flour in 98-pound cotton containers, at $13 per barrel, and 50 barrels of the same flour, in one-eighth barrel paper containers, at $13.15 per barrel. The writing was signed by Thomas Henry, salesman, for the plaintiffs, and ‘accepted’ by the defendant as buyer. The writing contained on its face ten printed conditions and the legend, ‘Send this to mill when accepted by jobber,’ and, on the back, a long list of ‘Package Differentials' and certain regulations of the Milling Division of the United States Food Administration. From the defendant, a carbon copy of this writing was put in evidence, Exhibit 2, which was identical, except that no figures for the price of the 50 barrels in paper containers appeared where the writing introduced by the plaintiffs bore $13.15. The plaintiffs also put in evidence a writing, Exhibit 3, headed ‘Memorandum of Sale-Copy for Customer,’ confirming a sale by the plaintiffs to the defendant on the terms set out in the writing first described.

It was admitted that the figures 13.15 were placed on Exhibit 1 immediately upon its receipt at the mills of the plaintiffs; that the confirmation was prepared thereupon and sent to the defendant; and that he received it in due course of the mail.

The flour was shipped to Boston, where it arrived December 10. Notice of arrival was sent to the defendant on December 11, and, on December 17, the defendant wired to the plaintiffs:

‘Flour arrived. Cannot take it. Notify your agent here.’

The plaintiffs later sold the flour at a loss and incurred expense incidental to the sale. They seek to recover the loss and expense as damages.

The defendant contended that the contract was as set out in the carbon copy, Exhibit 2, retained by him; that its terms had been changed by the confirmation, Exhibit 3; and that the original, Exhibit 1, had been altered materially by the insertion of the figures 13.15. He asked the court to rule that no valid contract was made out. The plaintiffs thereupon made the following offer of proof:

‘The plaintiff offers to prove that it was the understanding of Henry and Bombardieri on the 15th of September, at the time of the signing of Exhibits 1 and 2, that the space opposite the item ‘50 one-eighths paper’ was upon the face of both exhibits blank, as upon the face of Exhibit 2; that the said blank was left to be filled upon confirmation with the rate established at the mill as a charge for paper bags, and that this rate was by the mill fixed at 15 cents per barrel, and the fixing of this rate was communicated in and with the confirmation contained in Exhibit 3, and that the three exhibits are to be taken together. The plaintiff further offers to prove that in accordance with the custom...