Whitney v. Thacher

• Decision Date: 08 May 1875
• Citation: 117 Mass. 523
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Israel G. Whitney & others v. Thomas Thacher & another

117 Mass. 523

Israel G. Whitney & others v. Thomas Thacher & another

Supreme Court of Massachusetts

May 8, 1875

[Syllabus Material]

Suffolk. Contract upon the following agreement in writing signed by J. C. Rogers & Co., merchandise brokers:

"Boston Feb. 9, 1872. Sold to Messrs. Thacher & Co., for account of Messrs. I. G. Whitney & Co., 250 bales gunny bags to arrive at New York or Brooklyn from Calcutta per ship British Monarch, and to average by invoice 440 lbs. gross per bale or no sale, buyer's option. To be decided on receipt of invoice at 11 1/2 cents per bag gold in bond cash. To be of merchantable quality and deliverable sound and in good order from ship. It is guaranteed by sellers that duty on above bags shall not exceed two cents per lb. gold under present tariff." The contract was accepted by the defendants in writing across its face.

At the trial in the Superior Court, before Bacon, J., it was admitted that the defendants entered into the contract with the plaintiffs through J. C. Rogers & Co., merchandise brokers, of New York; that the ship British Monarch, with the 250 bales of gunny bags on board, consigned to the plaintiffs, arrived in New York on June 4, 1872; that the plaintiffs thereupon entered the merchandise at the custom-house, and procured the usual permit to land the goods, and sent an order on the ship for their delivery to the defendants, and procured the same to be landed and placed in a bonded warehouse, and took out a warehouse receipt in the defendants' names and delivered the same to the defendants, and that the duty on said merchandise did not exceed the rate named in the contract; that all this was done in accordance with the custom of merchants in the port of New York applicable to sales of this nature, and the whole completed and the warehouse receipt delivered on or before June 7.

The bill was presented to the first named defendant, who desired further time, as he was going out of town. The plaintiffs did not assent to this, and in his absence procured from the defendant firm the storage receipt and an order on the warehouse for the goods, which order was sent to the warehouse. At the same time, a note was written to the first named defendant, saying that when he returned he could take up the storage receipt and pay the bill. On the return of the first named defendant, he refused to have anything more to do with the matter.

There was evidence tending to show that the average invoice weight of the bales exceeded 440 pounds per bale, and averaged about 450 pounds per bale. The defendants contended that the plaintiffs must show a tender of goods corresponding with those described in the contract, or something which would excuse them from making such tender.

Upon the question of damages, the plaintiffs introduced testimony to show that the true market value of the bags in gold in bond at the time of the defendants' refusal to pay the bill on June 20, and also on June 27, when they refused to comply with the contract, was from 3 to 3 1/2 cents gold per bag less than the contract price. And this they claimed as the measure of damages. Among the other witnesses to this point the plaintiffs called two witnesses, who both testified that they were, and for seven or eight years last past had been, merchandise brokers in Boston, and members of firms which had houses established in Boston and New York, and that they were conversant with the market value of sales of gunny bags in the New York market during said time from daily price current lists and returns of sales daily furnished them in Boston from their New York houses; whereupon the defendants' counsel objected to their competency as witnesses to testify to the market value of gunny bags in the New York market at the time aforesaid; but the judge permitted them to testify.

These witnesses testified that there were no actual sales of gunny bags in the New York market during the month of June, 1872; but the price for which they were offered was 14 cents per bag in currency, duty paid by the seller, which, taking the then price of gold at 114 currency, would make the value of gunny bags at that time from 8 to 8 1/2 cents per bag gold in bond cash. To this evidence the defendants' counsel objected, but the judge admitted it.

The defendant requested the following among other instructions 1. The plaintiff must show a tender of goods which correspond in weight with those specified. If these averaged more than 440 pounds per bale, the plaintiffs cannot recover. 2. There is no evidence of the value of similar goods, in bond and for gold, therefore the damages must be...