The case is before us upon exceptions to EHRLICH v. UNITED SMELTING & ALU- the denial of the motion. We treat it as if it MINUM CO. (Supreme Judicial Court of Massachusetts. Hampden. March 4, 1925.) had been a motion to direct a verdict for the defendant in a trial to a jury. There was evidence, admitted without exception, which though contradicted in part would justify I. Words and phrases. "Composition chips" the following findings: One Lapides, an and "turnings" defined. In the metal trade, the words "composition chips" or "turnings" mean chips without aluminum. 2. Evidence 400 (3)-Written confirmation of purchase held not written contract, within rule precluding receipt of parol evidence. Written confirmation of contract for purchase of "composition chips" or "turnings," though containing all essentials of contract, held not a written contract, precluding receipt of parol evidence affecting its terms, in view of conduct of parties, showing that they regarded it as memorandum only. agent of the defendant, visited the plaintiff's place of business on March 12, 1923, and there bargained, among other things included in the declaration, for the entire contents of two bins of composition chips and turnings. The chips and turnings in the smaller bin contained a trace of aluminum. The presence of aluminum in the chips renders them less valuable. Lapides knew of the aluminum, and the price for the chips in both bins was made lower on account of its presence in the contents of the smaller bin. After examining the goods, the plaintiff and Lapides discussed purchase, prices, and terms Exceptions from Superior Court, Hamp- of sale. By the plaintiff's direction a paper den County; W. A. Burns, Judge. Action of contract by Moses Ehrlich against the United Smelting & Aluminum Company on an account annexed for goods sold and delivered, wherein defendant filed a declaration in set-off, alleging a breach of warranty in regard to one item, a refusal to accept delivery, and a payment on account sufficient to cover other items. On defendant's exception to denial of motion for directed verdict. Exception overruled. H. M. Ehrlich, of Springfield, for plaintiff. Green & Bennett, of Springfield, for defendant. WAIT, J. The plaintiff brought suit upon an account annexed for goods sold and delivered. The defendant filed a declaration in set-off, which alleged a breach of warranty in regard to one of the items of the account, a refusal to accept delivery, and a payment on account, and which claimed repayment of the amount so paid. There was no dispute that the defendant owed for the other items; but if it did not owe for the disputed item and was entitled to recover the payment made, the balance on the whole account would be in its favor. The judge who heard the case without a jury in the Superior Court found for the plaintiff. At the conclusion of the evidence the defendant presented the following motion: bearing the words, "Gentlemen: We confirm having sold you this day material as follows," was then prepared which set out the various articles, the prices, terms of payment and delivery, and in which the chips sold were described as "one carload composition chips." This paper was then signed by the plaintiff and under the word "Accepted" and the date, “United Smelting & Alum. Co., by L. Lapides, Secy." The next day the defendant sent to the plaintiff an order beginning, "Please furnish this company with the following material, as per conditions below," which contained the same items of articles, prices, terms of payment and of shipment as the confirmation, and also additional provisions, among them one which will be stated later. The shipment of the chips, at the defendant's request, was delayed until after May 15, 1923. The plaintiff shipped them, on May 16, properly packed with the contents of the two bins separate; and received the amount of a sight draft for 75 per cent. of the price on May 17. The car was unloaded about June 6. On June 11, the defendant wrote that on unloading the "composition turnings" it found that they did not correspond with the order, in that they contained aluminum; that it had not purchased this class of material, and that it held them subject to the plaintiff's instructions. The plaintiff refused to take them back, and brought this suit. [1] In the metal trade the words "composition chips" or "turnings" mean chips without aluminum. "Comes now the defendant at the close of all the evidence and moves that a verdict be directed for the defendant on any or all of the following grounds: (1) Upon the pleadings The defendant contended that the confirand evidence the plaintiff cannot recover. (2) mation constituted a written contract; that The plaintiff failed to perform under the terms of the written memorandum of sale and plain- under the parol evidence rule oral evidence, tiff cannot vary these terms by the verbal though admitted without objection, could not agreement alleged to have been made prior be considered to vary the meaning of the to the execution of such written instrument." words "composition chips," or to show that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) the parties used them in any other than the strictly technical sense of chips of composition which did not include aluminum. [2] It is true that the confirmation contains all the essentials of a contract (North Packing & Provision Co. v. Lynch, 196 Mass. 204, 81 N. E. 891), but the conduct of the signers shows that they regarded it as a memorandum only. Why, otherwise, should the defendant on March 13 send an "order" adding many details not discussed? Why, also, if the strict technical meaning was to be given to the words of the confirmation should the order provide, "All materials must conform to specifications stated herein, or in correspondence leading to this purchase, if not, same will be rejected with option to us to cancel order or have material replaced immediately with goods as ordered"? There had then been no correspondence leading up to the purchase. There had been oral discussion, and the words of the order imply that specifications must be given the sense in which the words had been used in that discussion. There would be much force in the argument addressed to us by the defendant and in the many cases cited in its brief, had the case rested upon an express contract in writing. As it does not, they are immaterial. No question of the statute of frauds was raised. The oral evidence of the transaction was admitted without objection. The confirmation was introduced as a memorandum to be considered with other evidence in deciding what the obligations of the parties really were. North Packing & Provision Co. v. Lynch, supra, at page 206. There was no error in refusing to rule as requested. The judge could well find, as he did, a purchase of specific bins of composition chips intentionally referred to by that name though known to include one bin which had traces of aluminum; delivery in accord with the terms of sale; and an obligation on the part of the defendant to pay the full price agreed. Exceptions overruled. motion might be urged before Supreme Judi- United States cannot be sued on liabilities arising from federal control of railroads except on grounds and to extent authorized by Federal Control Act, § 10 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 31154j), and General Order No. 50 of the President, or oth er statute. 3. Death 11-Right of action statutory. Since action for death of human being did not lie at common law, but is purely creature of statute, nature of such action depends entirely on enabling statute. 4. Railroads 52, New, vol. 6A Key-No. Series-Action for death caused during federal control, held action for penalty or fine, not maintainable against government. Action for wrongful death of human being from being struck at railway crossing, arising during period of federal control, is under St. 1906, c. 463, pt. 1, § 63, as amended by St. 1907, c. 392, § (now G. L. c. 229, §§ 1, 3), and St. 1906, c. 463, pt. 2, §§ 147, 245 (now G. L. c. 160, §§ 138, 232), an action for penalty or fine, and under Federal Control Act, § 10 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 31154j), and General Order No. 50 of the President, not maintainable. Exceptions from Superior Court, Bristol County; Marcus Morton, Judge. Action of tort by Mary J. Arruda, administratrix, against John Barton Payne, Director General of Railroads, substituted by James C. Davis, Agent, to recover for the wrongful death of plaintiff's husband, Antonio Soares Arruda. On defendant's exceptions to denial of motion for directed verdict. Exceptions sustained. H. F. Hathaway and E. Hathaway, both of Taunton, for plaintiff. M. G. Gonterman and H. Lawlor, both of Boston, for defendant. RUGG, C. J. This is an action of tort. It is brought to recover damages for the instant death of the plaintiff's intestate, which occurred in September, 1919, by reason of the ARRUDA v. DIRECTOR GENERAL OF collision of an automobile driven by him RAILROADS. (Supreme Judicial Court of Massachusetts. Bristol. Feb. 27, 1925.) 1. Appeal and error ~854 (5)-Litigant held entitled to urge any ground in support of motion for directed verdict in Supreme Judicial Court reviewing case on exceptions. Where motion for directed verdict did not specify grounds relied on, and presiding judge did not require statement of such grounds, held, any question of law actually involved in such while a traveler on a public way, with a locomotive engine, at a crossing at grade with | tracks of the New York, New Haven & Hartford Railroad system during the period when it was under federal control pursuant to acts of Congress and a proclamation of the President. 39 U. S. Stats. at Large, c. 418, pp. 619, 645 (U. S. Comp. St. § 1974a); 40 U. S. Stats. at Large, c. 25, p. 451 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 31154a-31154p); 40 U. S. Stats. at Large, 1733; 41 U. S. Stats. at Large, c. 91, p. 456 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (U. S. Comp. St. Ann. Supp. 1923, § 100714 in violation of the law, and that such gross et seq.). The action is brought under St. or willful negligence or unlawful act contribut1906, c. 463, part 1, § 63, as amended (St. | ed to the injury.” 1907, c. 392, § 1), in force at the time of the death. See now G. L. c. 229, §§ 1, 3. The material parts of that section as amended are: "If a corporation which operates a railroad or a street railway, by reason of its negligence or by reason of the unfitness or negligence of its agents or servants while engaged in its business, causes the death of a passenger, or of a person who is in the exercise of due care and who is not a passenger or in the employ of such corporation, it shall be punished by a fine of not less than five hundred nor more than ten thousand dollars which shall be recovered by an indictment prosecuted within one year after the time of the injury which caused the death, and shall be paid to the executor or administrator, one-half thereof to the use of the widow and one-half to the use of the children of the deceased; or, if there are no children, the whole to the use of the widow; or, if there is no widow, the whole to the use of the next of kin; but a corporation which operates a railroad shall not be so liable for the death of a person while walking or being upon its railroad contrary to law or to the reasonable rules and regulations of the corporation. Such corporation shall also be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars, which shall be assessed with reference to the degree of culpability of the corporation or of its servants or agents, and shall be recovered in an action of tort, begun within one year after the injury which caused the death, by the executor or administrator of the deceased for the use of the persons hereinbefore specified in the case of an indictment. * * But no executor or administrator shall, for the same cause, avail himself of more than one of the remedies given by the provisions of this section." The plaintiff relied upon two grounds of liability: (1) The alleged negligence of a crossing tender in the employ of the defendant and in charge of lowering gates to warn travelers of the approach of trains, and (2) the alleged failure on the part of those in control of the locomotive to give the signals required by St. 1906, c. 463, part 2, § 147 (now G. L. c. 160, § 138), to be given when a locomotive approaches and goes over a crossing at grade with a public way. It was provided by St. 1906, c. 463, part 2, § 245 (now G. L. c. 160, § 232), that: [1] The defendant seasonably filed a motion that a verdict be directed in its favor. That motion was denied. No grounds seem to have been stated at the trial on which it was urged that the motion ought to have been granted. It does not appear that the presiding judge required counsel for the defendant to specify the propositions of law on which he relied. Therefore the defendant in this court may raise any question of law actually involved in such motion, even though not referred to or not thought of at the trial. Parrot v. Mexican Central Railway, 207 Mass. 184, 190, 93 N. E. 590, 34 L. R. A. (N. S.) 261; Proctor v. Dillon, 235 Mass. 538, 540, 129 N. E. 265. The defendant argues that the damages here sought to be recovered are in the nature of a penalty or fine and hence cannot be recovered of the defendant under the controlling federal statutes and rules. [2] The government of the United States was in control and operation of the railroad at the time here in question. It is only by reason of the federal law that any action can be brought against the defendant, and it can be maintained only for grounds and to the extent authorized by that law. The federal government cannot be impleaded in any counts except to the extent and upon the terms to which it has consented. Keegan v. Director General of Railroads, 243 Mass. 96, 99, 137 N. E. 341; Davis v. Slocomb, 263 U. S. 158, 160, 44 S. Ct. 59, 68 L. Ed. 226. Resort must be had to the decisions of the Supreme Court of the United States to determine the nature and scope of the liability to which the defendant may be subjected. It was said in Director General v. Kastenbaum, 263 U. S. 25, 27, 44 S. Ct. 52, 53 (68 L. Ed. 146), after quoting section 10 of the Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 31153⁄4j): "By General Order No. 50, the executive so limited suits to be brought against carriers for injuries to person or property under the section as to exclude those for recovery of fines, penalties and forfeitures. As we said in Missouri Pacific R. R. Co. v. Ault, 256 U. S. 554, 563: "The government undertook as carrier to observe all existing laws; it undertook to compensate any person injured through When the life of a person was lost at such a departure by its agents or servants from a grade crossing through collision with an en- their duty under such law; but it did not ungine of a railroad corporation, and it appeared dertake to punish itself for any departure by that the corporation did not give such signals the imposition upon itself of fines and penalties and that the failure to give such signals con- or to permit any other sovereignty to punish tributed to such loss of life, "the corporation | it.'" shall be liable * * to a fine recoverable by indictment as provided in section sixty-three of part 1, or * to damages recoverable in an action of tort, as provided in said section, unless it is shown that, in addition to a mere want of ordinary care, the person injured *** was, at the time of the collision guilty of gross or willful negligence, or was acting * It further was said in the opinion in the Ault Case, 256 U. S. at page 563, 41 S. Ct. 597, 65 L. Ed. 1087: "There is nothing either in the purpose or the letter of these clauses [of the federal law] to indicate that Congress intended to authorize (147 N.E.) suit against the government for a penalty, if, are differences, as for example, the method of it should fail to perform the legal obligations imposed." And at page 564: "The purpose for which the government permitted itself to be sued was compensation, not punishment. In issuing General Order No. 50, the Director General was careful to confine the order to the limits set by the act, by concluding the first paragraph of the order: Provided, however, that this order shall not apply to actions, suits, or proceedings for the recovery of fines, penalties, and forfeitures.' Wherever the law permitted compensatory damages they may be collected against the carrier while under federal control. * But double damages, penalties and forfeitures, which do not merely compensate but punish, are not within the purview of the statute." instituting the burden of proof, and the recovery of costs. Kelley v. Boston & Maine Railroad, 135 Mass. 448, 449; Grella v. Lewis Wharf Co., 211 Mass. 54, 59, 97 N. E. 745, Ann. Cas. 1913A, 1136. It has been held in a long line of our decisions that an action of tort for recovery for causing death under this and similar statutes is "punitive," "penal," and in the nature of a "fine." It is not necessary again to collate them. They all are reviewed at considerable length in several recent cases. Boott Mills v. Boston & Maine Railroad, 218 Mass. 582, 585, 106 N. E. 680; Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 71 N. E. 66; Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 86 N. E. 289; Duggan v. Bay State Street Railway, 230 Mass. 370, 376, 119 N. E. 757, L. R. A. 1918E, 680. The principle is briefly, but emphatically, stated in Turnquist v. Hannon, 219 Mass. 560, 565, 107 N. E. 443; McCarthy v. Wood Lumber Co., 219 Mass. 566, 568, 107 N. E. 439; Johnston v. Bay State Street Railway, 222 Mass. 583, 111 N. E. 391, L. R. A. 1918A, 650; Gove's Case, 223 Mass. 187, 193, 111 N. E. 702; Eldridge v. Barton, 232 Mass. 183, 186, 122 N. E. 272. This conclusion has been reached having chief regard to two factors: (1) The origin of the statute as confessedly criminal; and (2) the assessment of damages, not as compensation to the persons to whom they are payable but solely with reference "to the degree of culpability of the corporation or its servants or agents." In the latest adjudication touching this subject, Sullivan v. Hustis, 237 Mass. 441, 446, 447, 130 N. E. 247, 249, 15 A. L. R. 1360, it was said: [3] The nature of an action like that at bar for death damages under St. 1906, c. 463, part 1, § 63, and kindred statutes, has been discussed in numerous of our decisions. At common law the death of a human being could not be the subject of an action at law of any kind. All actions founded on such death are the creatures of statute. Such actions, therefore, depend for their nature entirely upon the terms of the enabling statute. Carey v. Berkshire Railroad, 1 Cush. 475, 48 Am. Dec. 616; Duggan v. Bay State Street Railway, 230 Mass. 370, 376, 119 N. E. 757, L. R. A. 1918E, 680; Admiralty Commissioners v. Amerika Steamship, [1917] A. C. 38; Western Fuel Co. v. Garcia, 257 U. S. 233, 240, 45 S. Ct. 89, 66 L. Ed. 210. The earlier statutes of this commonwealth authorizing recovery on account of death restricted the remedy to indictment alone. As to railroads, the remedy was subsequently enlarged by giv"The words 'penal' and 'punitive,' which have ing a civil remedy in addition to the remedy been used from the beginning to describe the by indictment. By the terms of said section nature of our death statutes, were necessary 63 already quoted, under which the present and accurate because at the first all such stataction is brought, the executor or administra-utes were criminal in form and were prosecuttor of a person killed in the circumstances ed by indictment. Later, when the remedy by the amount disclosed on this record has the choice of în-action of tort was added * voking the remedy by indictment or of bring- to be recovered never has been based on daming an action at tort, but cannot avail him- ages sustained by the family of the deceased. The amount recoverable always has self of more than one. The history of our been ascertained and assessed with reference statutes on this subject is set forth in great to the culpability of the defendant himself or his detail in Hudson v. Lynn & Boston Railroad, agents and never with any reference to the 185 Mass. 510, 71 N. E. 66, and in Brooks v. actual loss sustained by the plaintiff, or by the Fitchburg & Leominster Street Railway, 200 widow, the family, or next of kin of the deMass. 8, 86 N. E. 289. It need not be repeat- ceased. The words 'penal' and 'punitive' have ed. It hardly could be thought that a remedy continued to be used rightly as descriptive of by indictment was anything other than for the method of determining the damages recoverable. They also have been used correctly the "recovery of fines, penalties and forfei- when the rights between themselves of those tures" excluded by the express words of Gen- who have contributed to causing the death of a eral Order No. 50 from the classes of suits human being were involved." to which the defendant can be made liable. It was said in Merrill v. Eastern Railroad, 139 Mass. 252, 29 N. E. 666, with reference to an earlier form of the very statute on which the present action is founded, that in important particulars, "no distinction can be made between an indictment and an action of tort." In other aspects there * As there pointed out and decided, the statute has compensatory features and a remedial function because the damages when collected from the defendant are paid to the widow, children or next of kin of the deceased. In that case the receiver of a railroad, appointed by a court of the United States, was held the loss of the life of the person killed. But, in this particular, our "Massachusetts acts are exactly what Lord Campbell's Act is not." Hudson v. Lynn & Boston Railroad, 185 Mass. at 518, 71 N. E. 66, and cases there collected; Michigan Central Railroad v. Vreeland, 227 U. S. 59, 69 to 74, 33 S. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176. A conclusion in harmony with the present decision was reached in construing a similar statute in Howard v. Davis, 209 Ala. 113, 95 So. 354, and in Pryor v. Payne, 209 Mo. App. 7, 244 S. W. 369. But see McDaniel v. Hines, 292 Mo. 401, 239 S. W. 471. liable to an action founded on the same stat- | Act in England, founded on compensation for ute as is the case at bar. That was on the ground that such a receiver was liable to such an action under the Judicial Code of the United States, 36 U. S. Stats. at Large, 1104, 1105, § 65 (U. S. Comp. St. § 1047), to the effect that he "shall manage * * such property according to the requirements of the valid laws of the state in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof," and section 66 (U. S. Comp. St. § 1018) to the effect that "every receiver * may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver was appointed." Those words bounding the liability of a receiver appointed by a court of the United States seem to us much more comprehensive than the controlling words of statute and order in the case at bar. By section 10 of the Federal Control Act (Act March 21, 1918, c. 25, 40 U. S. Stats. at Large, 451, 456 [U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115j]), it was provided: By General Order No. 50 of the President, it was in effect provided that the federal government in control of railroads should not be subject "to actions, suits or proceedings for the recovery of fines, penalties and forfeitures." That was a valid order. Missouri, Pacific Railroad Co. v. Ault, 256 U. S. 554, 564, 41 S. Ct. 593, 65 L. Ed. 1087. The It may be that the exclusion of the United States in its operation of railroads from liability like that sought to be enforced in the present action was an oversight or unintentional. We cannot supply a casus omissus. We can only interpret the law as it was promulgated without regard to our own ideas of expediency. See v. Building Commissioners of Springfield, 246 Mass. 340, 345, 141 N. E. 105; United States v. Weitzel, 246 U. S. 533, 543, 38 S. Ct. 381, 62 L. Ed. 872. It follows that the motion for a directed verdict ought to have been allowed. As this is decisive against the plaintiff's right to recover, it is unnecessary to consider the other questions argued. Exceptions sustained. J. H. GERLACH CO., Inc., v. NOYES. (Supreme Judicial Court of Massachusetts. Suffolk. March 2, 1925.) case at bar appears to us manifestly distin-1. Estoppel 95-Mere passivity or silent guishable from Sullivan v. Hustis, 237 Mass. 441. It is different in principle from Atchison, Topeka & Santa Fé Ry. v. Nichols, 264 U. S. 348, 44 S. Ct. 353, 68 L. Ed. 720. [4] We are unable to see our way to hold, in view of our decisions already cited, that the present action does not fall within the classification of "actions, suits or proceedings for the recovery of fines, penalties or forfeitures." Doubtless the effect of section 10 of the Federal Control Act and General Order No. 50 is to deprive dependents of those killed by the operation of railroads by the United States in this commonwealth of the money which they could have recovered from the railroads under private control, and of the kind of financial aid somewhat analogous to the compensation permitted in the great majority of states and under some laws of the United States, where statutes authorizing recovery for death are, like Lord Campbell's standing by, in hearing of declaration of fact, will not work estoppel, in absence of duty to speak. Mere passivity or silent standing by, in hearing of declaration of fact, will not work estoppel to deny such fact, unless hearer had duty to speak and reasonable grounds to anticipate that declarant will be lulled into security or change his position by faith in existence of declared fact, which hearer knows concerns his interest and is untrue. 2. Estoppel 93(1)-Lessor, silently permitting installation of bowling alleys purchased on conditional contract, held estopped to assert title. Lessor, whose lease provided that bowling alleys constructed by tenant should become For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |