Weston v. Barnicoat

• Decision Date: 02 March 1900
• Parties: WESTON v. BARNICOAT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 454

56 N.E. 619

WESTON v. BARNICOAT.

Supreme Judicial Court of Massachusetts, Norfolk.

March 2, 1900

COUNSEL

C. W. Bartlett and E. R. Anderson, for plaintiff.

J. E Cotter, G. W. Wiggin, and J. W. McAnarney, for defendant.

OPINION

HOLMES C.J.

This is an action of tort brought against a member of an association of the type considered in Hartnett v. Association, 169 Mass. 229, 47 N.E. 1002, 38 L. R. A. 194 for using the machinery provided by the association's by-laws. The defendant made a claim against the plaintiff for the price of a granite monument, which the plaintiff declined to pay. The defendant thereupon notified the plaintiff that if the plaintiff did not pay, he should report the plaintiff's name to the association, to be placed upon its record of those who did not pay their honest debts. The plaintiff not paying, the defendant notified the local secretary; and thereupon the plaintiff received a letter from the association, urging him to settle or explain, with a threat of placing his name upon the record if he did not. The consequence of placing a name upon the record or blacklist was a boycott by the association, as the plaintiff was notified by a copy of the following by-law: 'No member of this association shall quote prices or do any work, either directly or indirectly, for any person or persons whose name appears on the list.' The plaintiff did not pay, and a little later his name was placed upon the list, with the anticipated result, and with the effect of serious damage, at least, to the plaintiff's business. The plaintiff thereupon brought this action for causing the circulation of the report, and had a verdict. The case is here on exceptions. It was treated at the trial as an action for libel, so that some questions touched upon in May v. Wood, 172 Mass. 11, 51 N.E. 191, do not arise. In the opinion of a majority of the court, the exceptions must be overruled.

1. The defendant set up the truth of the alleged libel, and so the question who was in default under the contract came before the jury. The defendant contended, with reference to the quality of the stone used, that the contract was by sample, and offered the alleged sample in evidence. It was excluded for that purpose, and, although it was admitted upon other grounds, the court instructed the jury that 'the sample was not a part of the terms of the contract,' and an exception was saved to the ruling. The contract was made by letters. Before the bargain was made the defendant wrote that he would send a sample of stock, and did so. In reply the plaintiff wrote that he had decided to give the defendant the order for the monument, etc.; 'the same to be made of first quality white Westerly granite.' Further on he added: 'This job must be free from iron, knots, streaks, or any imperfections, and cut as fine as it is possible to cut Westerly granite, and first-class in every respect.' It does not matter whether the contract was made by this letter, or only after some further correspondence, as this letter fixed the terms. It seems to us that the order in the words quoted was an order by description, not by sample, and that the ruling was correct. Possibly the fact that the sample had been exhibited might have some bearing on the meaning of 'white Westerly granite' and of 'first-class,' so far as it applied to the quality of the stone; but the letter made the test of performance conformity to the words of description used, not conformity to the piece of stone previously shown. In the language of Pike v. Fay, 101 Mass. 134, 137, cited by the defendant, the writing distinctly defined the article to be delivered.

2. The next exception is to the admission of letters, written after the action was begun, declining to deal with the plaintiff on the ground that his name was on the blacklist. 'There can be but one assessment of damages for the cause of action on which this suit is based, and all the damages (those accruing after as well as before the bringing of the action) must be included in it. Evidence as to damages after the date of the writ was therefore rightly admitted. Fay v. Guynon, 131 Mass. 31.' Wheeler v. Hanson, 161 Mass. 370 377, 37 N.E. 382. The letter embodied the act of refusal, which was an example of the precise damage which the libel did and was intended to do. The act was not qualified or made inadmissible by the fact that the letter contained a compliment to the plaintiff. Generally speaking, admissible evidence is not made inadmissible by carrying with it some collateral fact disadvantageous to the other side, which of itself could not be put in proof. Thus, even in a criminal case, where previous disposition or intent is to be proved, the evidence of it is not to be rejected because it may prove another crime. Com. v. Bradford, 126 Mass. 42, 45; Com. v. Corkin, 136 Mass. 429, 431; Com. v. Robinson, 146 Mass. 571, 578, 579, 16 N.E. 452. The possibility that the evidence might be manufactured goes to its weight, not to its competency. Such a possibility exists generally after a suit is begun. The plaintiff's testimony imported that the letter was written bona fide in the regular course of business, and the defendant had the chance to cross-examine him. The letter from the plaintiff was not called for, and no objection upon the ground of...