White v. Solomon

• Decision Date: 26 November 1895
• Citation: 164 Mass. 516,42 N.E. 104
• Parties: WHITE et al. v. SOLOMON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 516

42 N.E. 104

WHITE et al. v. SOLOMON.

Supreme Judicial Court of Massachusetts, Suffolk.

November 26, 1895

COUNSEL

George H. Ryther, for plaintiffs.

James E. Kelley, for defendant.

OPINION

HOLMES, J.

This is an action upon the following contract:

"White's Physiological Manikin.

"Place and date: 75 Court Street, Boston, Mass., June 7, 1889.

"Messrs. J.T. White & Co., Publishers, New York--Gentlemen: Please deliver, according to shipping directions given below, one White's Physiological Manikin, Medical Edition, price $35.00. In consideration of its delivery for me, freight prepaid, at the express office specified below, I promise to pay the sum of $35.00, as follows: $10.00 upon delivery at the express office, and the balance in monthly payments of $5.00, each payable on the first of each and every month thereafter, until the whole amount is paid, for which the publishers are authorized to draw when due.

"It is expressly hereby agreed that, in case of the failure to pay any one of the said installments after maturity thereof, all of said installments remaining unpaid shall immediately become due and payable, and the said James T. White & Co. may take, or cause to be taken, the said manikin from the possession of the said subscriber or their representatives, to whom he may have delivered the same, without recourse against said James T. White & Co. for any money paid on account thereof; it being expressly, agreed that the money paid on account shall be for the use and wear of said manikin.

"Shipping directions (to be filled out by the agent):

"To whom sent, J.M. Solomon, 75 Court Street.

"Town, Boston. County of Suffolk.

"State, Massachusetts.

"James M. Solomon, 75 Court Street.

"Agent, W.F. Byrd."

There was evidence, and we must assume the judge who tried the case to have found, that the manikin was delivered, as agreed, to the express company, freight prepaid; that the defendant refused to receive it; that, in consequence, the express company, after a time, left the manikin at the plaintiffs' place of business, in pursuance of a rule of the company, and without the plaintiffs' assent; and that it is held subject to the defendant's order. There had been no repudiation of the contract by the defendant before the delivery of the manikin at the express office.

The main question is whether the judge who tried the case ought to have ruled that "the plaintiff is not entitled to recover the price of the article in question, but must offer evidence to the court upon the question of damages for the alleged breach of said contract." A majority of the court is of opinion that this ruling properly was refused. We assume in favor of the defendant, but without deciding, that the title to the manikin did not pass by delivery at the express office; but, that assumption does not dispose of the case. In an ordinary contract of sale, the payment and the transfer of the goods are to be concurrent acts; and if the buyer refuses to accept the goods, even wrongfully, he cannot be sued for the price, because the event on which he undertook to pay the price has not happened; and, although the fact that it has not happened is due to his own wrong, still he has not promised to pay the price in the present situation, but must be sued for his breach of contract in preventing the event on which the price would be due from coming to pass. The damages for such a breach necessarily would be diminished by the fact that the vendor still had the title to the goods. But in the case at bar the buyer has said in terms that although the title does not pass by the delivery to the express company, if it does not, delivery shall be the whole consideration for an immediate debt (partly solvendum in futuro), of the whole value of the manikin, and that the passing of the title shall come as a future advantage to him when he has paid the whole. The words "in consideration of delivery" are not accidental or insignificant. The contract is carefully drawn, so far as to make clear that the vendors intend to reserve unusual advantages and to impose unusual burdens. We are not to construe equities into the contract, but to carry it out as the parties were content to make it. If a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so, and thereby binding himself to pay the whole sum. See the observations of Blackburn, J., in Martineau v. Kitching, L.R. 7 Q.B. 436, 455. Benj. Sales (4th Ed.) 716, 717. When, as here, by the terms of the contract, every condition has been complied with which entitles the vendors to the whole sum, and, if the vendors afterwards have not either broken the contract or done any act diminishing the rights given them in express words, the buyer cannot, by an act of his own repudiating the title, gain a right of recoupment, or otherwise diminish his obligation to pay the whole sum which he has promised. See Smith v. Bergengren, 153 Mass. 236, 238, 26 N.E. 690.

If the first payment of $10 upon delivery were to be made upon delivery to the buyer, it well may be that, if the buyer refused to accept the manikin or to pay the $10, the sellers' only remedy would be for a breach, and that they could not leave the manikin at his house, and waive the payment against his will, with the result of making the whole sum due. But here the delivery is to be to an express company, and the provision for payment of $10 "upon delivery at the express office" must mean after the delivery; so that the delivery is the first act, and by itself, without more, fixes the rights of the vendors to the price, just as the transfer of the stock did in Thompson v. Alger, 12 Metc. (Mass.) 428, 444. Our decision is in accord with the following cases (we know of no decisions to the contrary): Safe Co. v. Emanuel, 21 Abb.N.C. 181; Brewer v. Ford, 54 Hun, 116, 120, 7 N.Y.Supp. 244; Id., 126 N.Y. 643, 27 N.E. 852; Carnahan v. Hughes, 108 Ind. 225, 9 N.E. 79. See, further, Burnley v. Tufts, 66 Miss. 48, 5 So. 627; Tufts v. Griffin, 107 N.C. 47, 12 S.E. 68. But compare Tufts v. Grewer, 83 Me. 407, 22 A. 382; Swallow v. Emery, 111 Mass. 355, 357.

Two remaining exceptions may be disposed of in a few words. It is objected that a deposition of one of the plaintiffs was not admissible, because he refused to answer a cross interrogatory. The cross interrogatory was whether or not one Byrd had made other sales than the contract in suit for the plaintiffs. It does not appear to have been material. Therefore the deposition properly was admitted. We need not consider whether, if the question had been material, the deposition ought to have been excluded, unless before the trial the defect had been brought to the attention of the court, that it might pass such order on the subject as should seem proper.

It was objected that there was no evidence of the defendant's signature. But the defendant's answer: "The signature resembles mine. I wish to have the contract identified before answering further,"--coupled with the absence of any later denial, was enough.

Exceptions overruled.

DISSENTING

FIELD C.J. (dissenting).

It is not easy, perhaps, to reconcile all our decisions upon the measure of damages in actions for goods bargained and sold or for goods sold and delivered; but the general rule is, I think, that where the title passes to the vendee by the contract, and the contract has been executed by a delivery or by what is equivalent to a delivery, the vendee is liable to the vendor for the price; but where the title does not pass to the vendee by the contract, and he declines to receive and accept the goods sold, the damages...