West v. Platt
| Decision Date | 04 September 1879 |
| Citation | 127 Mass. 367 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Samuel West v. John R. Platt & another |
Suffolk. Contract. After the decision reported 120 Mass. 421 the Superior Court ordered the statement of facts, on which the case was argued before this court, to be discharged, and the case to stand for trial. See 124 Mass. 353. The case was then tried; the jury returned a verdict for the plaintiff and the defendants alleged exceptions, the substance of which, and of the pleadings, excepting the fourth count sufficiently appears in the opinion. The fourth count set forth a contract between the parties for the sale and delivery of glass in the terms and upon the considerations set forth in certain letters annexed. These letters were as follows: On August 16, 1871, the plaintiff wrote to the defendants asking an estimate for the glass in question. The defendants answered on the 17th, stating they would furnish the glass "boxed and shipped within sixty days from date of order" for $ 1735. On the 21st, the plaintiff wrote saying he should send an order in a few days, and added, "as the glass is not wanted for some months, there is no need of haste." On the 25th, the plaintiff sent an order for the glass, saying that it would not be required before December. On the 28th, the defendants wrote to the plaintiff that they had booked the order. On October 17th they wrote to the plaintiff that the order of August 25th had been received from the factory, and added, "Be kind enough to give us your shipping directions." On October 19, the plaintiff wrote as follows: On November 3, he also wrote to them that, owing to interruptions, the building had not advanced as rapidly as was expected; and that, if necessary, he would make a deposit to retain the glass until December 1st. On December 9th, the defendants wrote to the plaintiff as follows: On December 26th, the plaintiff wrote to the defendants, stating that he enclosed a check for $ 400 on account of the glass; that he found it almost impossible to make collections; and thought after the first of the year money would be easier, and he should be able to do better with the defendants. On December 28th, the defendants answered this letter, acknowledge the receipt of the check, stating that they had credited the plaintiff with it, and added, "Hope you will be able to send us more soon after January 1st, as we are much in need of it." The count then alleged that within a reasonable time, namely, on August 15, 1872, the plaintiff ordered the defendants to send the glass, and offered to pay the residue of the $ 1500; refusal of the defendants to perform their part of the contract; and damages to the plaintiff.
Exceptions overruled.
D. E. Ware, (J. E. Hudson with him,) for the defendants.
O. W. Holmes, Jr. & W. A. Munroe, for the plaintiff.
This action is to recover damages for a failure to perform a written contract for the delivery of glass within a time named, or within a reasonable time; and also to recover for money paid on account of the same. The written contract was contained in the correspondence of the parties.
1. The declaration contained seven counts, and demurrers were filed to the second and fourth. The second count alleges in substance a promise to keep and deliver the glass within a reasonable time, in consideration of the purchase by the plaintiff, and his promise to pay $ 1500 on account within a reasonable time; that the defendants, upon request, refused to deliver, although the plaintiff was ready and willing to pay for the same on delivery. This is a good count. The promise to pay on account means on account of the glass. The promises are mutual and dependent, each was the consideration for the other. An offer to perform by one who is ready and willing, followed by an absolute refusal, is sufficient to give him a right of action. Carpenter v. Holcomb, 105 Mass. 280. The actual tender and payment of the consideration is not a condition precedent.
The demurrer to the fourth count cannot be sustained. The letters annexed to and made part of this count do not definitely fix the time within which the payment of the balance of the $ 1500 was to be made. They tend to show that the offer to pay within a reasonable time is all that was necessary. See West v. Platt, 120 Mass. 421. The offer is alleged to have been made in a reasonable time, and the allegations in this count do not alone show as matter of law that it was not. In other words, the jury might find, upon all the facts alleged, that the offer was made within a reasonable time.
2. At the conclusion of the plaintiff's case, the defendants requested the court to rule that there was a variance between the evidence and each of the first six counts. These counts state substantially the same contract as constituting the real cause of action, with variations in the several counts relating only to the time of its performance. It is alleged in the first count, that the defendants agreed in August to sell and deliver the glass in question; it being understood that it would not be required before December following, and that in December they agreed to waive the full payment of the price, and to hold it until the plaintiff should be ready for it. In the second count, a purchase of glass is alleged, to be paid for on or after delivery, and in consideration thereof, and the agreement that the plaintiff should pay a certain sum on account within a reasonable time, it is further alleged that the defendants promised to hold it until the plaintiff should be ready for it. In the third count, it is charged that the agreement was to sell and deliver in a reasonable time. In the fourth, that the contract was made in the terms of fourteen letters, copies of which are annexed, and that the plaintiff offered to pay the price within a reasonable time. The fifth count is for money had and received. And the sixth alleges that the contract is contained in a part of the letters annexed to the fourth count, namely, the three dated in August 1871.
The evidence in support of these counts is contained in the correspondence of the parties, covering about a year in time and embracing some forty letters, with several monthly accounts rendered, some admitted facts, and some oral testimony. The question at the trial really was,...
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...the bonds from any presumed intention. The ‘best evidence of intention is to be found in the language used by the parties.’ West. v. Platt, 127 Mass. 367, 372. The apparent intention of the parties as disclosed by the language of the bonds was that the bondholders in any event were to resor......
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