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4. Sales 81(4)-Conditions held not to be [ 11. Sales Com 382_Computations of witness

such that buyer of lumber could repudiate based in part on lumber manufactured be. contract.

fore contract was made held relevant and Where parties agreed that deliveries of

material. lumber were subject to delay for causes beyond Where seller was not prevented from apcontrol of seller, car shortage and embargo propriating to contract lumber already manuwere not such conditions that foundations of factured in its action for buyer's breach, comcontract were taken away and its perform- putations of witness based in part on lumber ance rendered impossible for such time that manufactured before contract was made were buyer could repudiate it.

material and relevant. 5. Appeal and error 1033(5)-Instruction 12. Discovery 79-Indentity of matters in. that time was essence of contract condition

quired about held sufficient to allow admis. ally held favorable to buyer.

sion of answers to interrogatories. In action by seller for buyer's breach of

As by G. L. c. 231, § 89, party interrogated contract to purchase lumber, instruction that may require whole of the answers, on subtime was of essence if seller entered into con- ject inquired about, to be read if part of them tract with knowledge of buyer's contract with is read, where subject-matter inquired of by third person for delivery of lumber of same defendants and answers given by its president amounts and sizes, at the same times and if it in interrogatories related to lumber manufacwas made to supply lumber to enable buyer tured by plaintiff during period of contract, to meet its obligations held sufficiently favor- there was sufficient identity of matters inquired able to buyer.

about to allow admission of answers. 6. Sales 182(3)-Buyer's acceptance of

slow deliveries of lumber held for jury on 13. Sales Cw384(1)-Duty of seller of lumber question of waiver of its right to rescind

to mitigate damages on buyer's breach did not for seller's breach.

require consideration of price paid by buyer's

customer. Where buyer of lumber under contract accepted slow deliveries, effect thereof was for Duty of seller of lumber to mitigate dam. jury on question of its waiver of right to re- ages after buyer's breach did not necessarily scind because of nonperformance by seller, require jury to consider price paid by buyer's

customer to buyer. 7. Sales C388-Charge that if seller of lum

ber treated buyer fairly with reference to 14. Sales Cw388-Request relating to buyer's other customers, it did its duty to buyer

customer canceling contract with buyer prop. held without error.

erly refused. Where seller, because of embargo and car

In seller's action for buyer's breach of conshortage, was not obliged at its peril to make tract to purchase lumber, cancellation of cerequal monthly shipments of lumber under contain portions of contract by buyer's customer tact excusing delay for causes beyond its con

was not conclusive that buyer was entitled to trol, charge that if it treated buyer fairly with cancel its contract with seller, and request rereference to other customers and supplied it lating to customer's cancellation was properly ratably, it did its duty to its customers with

refused. reference to shipments was without error. 8. Trial C260(9) --Request held fully cover

Exceptions from Superior Court, Suffolk ed by instruction given.

County; Marcus Morton, Judge. In seller's action for buyer's breach of contract to purchase lumber, buyer's request that Action in contract by the Bradley Lumber if it were entitled to cancel contract, its mo- & Manufacturing Company against George tive was immaterial was fully covered by in- Cutler and others, copartners as Stetson, Cutstruction given.

ler & Co., to recover for breach of contract 9. Trial o 260 (9)–Request on seller's fail- for purchase of lumber by defendants. Ver

ure to perform contract covered by remarks dict for plaintiff, and defendants except. of court thereon.

Exceptions overruled. It was not error to refuse buyer's request that if seller shipped only four cars of lumber

C. F. Choate, Jr., of Boston, for plaintiff. in August and six cars in September then in

T. W. Proctor and F. W. Grinnell

, both of absence of proving excuse for larger shipments Boston, for defendants. beyond seller's control, seller failed substantially to perform contract, request being covered by court's remarks thereon.

CARROLL, J. The plaintiff manufactures

lumber in South Carolina. The defendants 10. Sales Cw88-Amount of lumber ordered are lumber merchants in Boston. The action

and amount appropriated to contract held is in contract to recover damages for the questions of fact for jury. In contract for purchase of lumber to be lumber by the defendants. In the superior

breach of a contract for the purchase of shipped in approximately equal monthly installments, in seller's action for buyer's breach, court there was a verdict for the plaintiff. amount of lumber ordered and amount appro

The case is here on the defendants' exceppriated to contract were questions of fact for tions to the court's rulings, and to the admisjury.

sion of evidence.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(148 N.E.) On May 10, 1920, the defendants made a , The plaintiff relies for its failure to make written contract with the General Electric shipments on the clause in the contract exCompany to supply it with lumber at its cusing delay because of "causes beyond our plants in Schenectady, in the state of New control.” In answer, the defendants contend York, Pittsfield, in this commonwealth, Erie, that by relying on this clause the plaintiff is in the state of Pennsylvania, and Bloomfield, suing on a defense, and not on a performance. in the state of New Jersey; provision was if the contract contained no clause excusing made therein for a modification in price in the plaintiff from performance, and the delay the event of a general price revision.

To i was

so important that it amounted to a fulfill the contract the defendants made the breach of the contract, the defendants could contract in suit to purchase lumber from the have refused to go on and could have brought plaintiff, dated July 2, 1920; it was executed an action for the plaintiff's nonperformance. by the plaintiff on July 27, 1920, and a short Whether the breach was serious enough to time thereafter was signed by the defendants. justify the defendants in refusing further It required a minimum of three million feet performance, as a general rule, is a question of lumber, with a maximum of four million of fact for the jury. National Machine & feet, at the defendants' option. Deliveries Tool Co. v. Standard Shoe Machinery Co., 181 were to be in such quantities and at such Mass. 275, 63 N. E. 900; Eastern Forge Co. v. times as the defendants ordered, shipments to Corbin, 182 Mass. 590, 593, 66 N. E. 419; be in "approximately equal monthly quan- Dudley v. Wye, 230 Mass. 350, 119 N. E. 790; tities during the contract period,” the seller Miller v. Benjamin, 142 N. Y, 613, 617, 37 N. agreeing to make extra heavy shipments E. 631. If the plaintiff's failure were not so "during the fall months." There was no pro- serious as to go to the root of the contract, an vision in the contract between the plaintiff action for the defendants' breach would lie. and defendants for a price reduction in the A delay not going to the essence of the conevent of a general price revision in the mar-tract would not prevent a recovery if the deket. The purchaser had the right to route all fendants refused to go on with the agreeshipments. No time limit was set for per- ment. formance but it seems to have been assumed [3, 4] The parties agreed that deliveries of that it was to be completed in one year. One lumber were subject to delay from causes of the clauses was, "This contract subject to beyond the plaintiff's control. The shortage delay from strikes, accidents, wreck of cars of cars and the embargo, the jury could find, containing goods, or other causes beyond our were beyond its control and were not occacontrol, and subject to cancellation from de- sioned by any act or omission of the plaintiff. struction of our mill.” The defendants gave On this finding the plaintiff was excused from various orders for lumber; in August, Sep performance within the time agreed. Durdentember and October the plaintiff shipped a Coleman Lumber Co. v. William H. Wood total of twenty-five cars. The defendants Lumber Co., 221 Mass. 564, 109 N. E. 648. See wrote the plaintiff, requesting more deliver- Garfield & Proctor Coal Co. v. insylvania ies of lumber in August. The plaintiff's sales Coal & Coke Co., 199 Mass. 22, 42, 84 N. E. manager wrote excusing delay on the ground 1020. An embargo or shortage of cars might of continued rain. At the trial the plaintiff be so permanent and extensive "that the relied upon a car shortage as the reason for foundation of what the parties are deemed to its delay. The defendants granted a price have had in contemplation has disappeared, revision to the General Electric Company in and the contract itself has vanished with that October, 1920, and wrote the plaintiff asking foundation.” F. A. Tamplin Steamship Co., It to revise its price for the lumber. The Limited, v. Anglo-Mexican Petroleum Prod. plaintiff refused, and later, by letter of Octa ucts Co., Limited, 2 [1916] A. C. 397, 406, 407. ber 25, repeated its refusal. The defendants See North German Lloyd v. Guaranty Trust telegraphed the plaintiff's mill to stop all Co., 244 U. S. 12, 37 S. Ct. 490, 61 L. Ed. 960; shipments, and on October 26, notified the Allanwilde Transport Corp. v. Vacuum Oil plaintiff that owing to its failure to perform Co., 248 U. S. 377, 39 S. Ct. 147, 63 L. Ed. the contract and make deliveries, the defend- 312, 3 A. L. R. 15; Metropolitan Water ants canceled the contract.

Board v. Dick, Kerr & Co., Limited, (1918) There was evidence that in August the A. C. 119. These cases, however, are not plaintiff was ready to ship additional lumber, applicable. The conditions were not such but was prevented by railroad embargoes and that the foundations of the contract were a shortage of railroad cars; that in Septem- taken away and its performance rendered ber it endeavored to make more deliveries, impossible for such a length of time that but found it impossible for the same reasons; the defendants could repudiate it. and that like conditions existed in October. [5] The defendants contend that there was We consider the defendants' exceptions in error in the instruction given the jury, to the the order they are argued in their brief.

effect that time was of the essence if the [1, 2] 1. The defendants moved for a di- plaintiff entered into the contract with knowlrected verdict.

The refusal to allow this edge of the contract of the defendants with motion raises the main question in the case. the General Electric Company for the deliver

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ies of lumber, “in the same amounts of the The request was correctly covered by this same sizes

at the same times," and instruction and the defendants cannot comif it was made for the purpose of supply- plain that the exact language of the request ing the material to enable "the defendants was not given. to meet their obligations

with the [9] 6. The defendants' seventh request was General Electric." We do not find that the as follows: defendants excepted to this instruction. It was sufficiently favorable to them. The con

“ If the plaintiff shipped only four cars in tract in suit contained no reference to the August, and six cars in September, then in the contract of the defendants with the General ments beyond the plaintiff's control, the plain

absence of proving'an excuse for larger shipElectric Company. The plaintiff's knowledge tiff did fail in a substantial manner to perof such contract was a question of fact. form its contract, and cannot maintain this There was no error of law in this instruction. action."

[6] 3. The judge correctly instructed the jury on the question of waiver. The waiver

The plaintiff's failure to perform was a of a claim for damages was not involved. See question of fact; and the request was propGarfield & Proctor Coal Co. v. Fitchburg R. erly covered by the remarks of the court on Co., 166 Mass. 119, 44 N. E. 119. In the case this subject. There was no error in its reat bar one of the issues before the jury was fusal. the defendants' waiver of the plaintiff's fail

7. The subject-matter of the eighth and ure to perform. The defendants accepted ninth requests was sufliciently covered in the slow deliveries. The effect of this could be charge, as was the tenth request. There was considered by the jury on the question of the no error in refusing the defendants' remaindefendants' waiver of the right to rescind the ing requests in this connection. contract because of nonperformance by the

[10] As to the amount of lumber ordered, other party. Norrington v. Wright, 115 U. S. that too was for the jury, the amount appro188, 6 S. Ct. 12, 29 L. Ed. 366.

priated also was a question of fact. These [7] 4. The defendants excepted to the por- issues were left to the jury under appropriate tion of the charge wherein it was stated in instructions. substance that if the plaintiff treated the

[11] 8. The exceptions to certain testimony buyer fairly with reference to other custom of the witness Mills must be overruled. His ers, and supplied the buyer ratably, the plain- computations were based in part on lumber tiff did its full duty to its customers with manufactured before the contract was made. reference to shipments. Whether the defend- The plaintiff was not prevented from approants were treated ratably was a question of priating to the contract lumber already manfact. There was evidence tending to support ufactured. The testimony of the witness rethe plaintiff's contention that they were so lating to such appropriated lumber was matreated, and supplied ratably with other cus-terial and relevant. tomers. The plaintiff, because of the dif [12] 9. Answers to certain interrogatories ficulty in making shipments, was not obliged filed by the defendants, to be answered by at its peril to make equal monthly shipments the plaintiff's president, were put in evidence according to the contract, beginning August by the defendants. The plaintiff then offered 1. It was protected by the clause of the con- answers to interrogatories 6, 7, 8, 9, and 25. tract excusing it from delay arising from To the admission of these answers the decauses beyond its control.

fendants excepted. By G. L. c. 231, § 89, the [8] 5. The defendants excepted to the re- party interrogated may require the whole of fusal to give the twentieth request, in effect, the answers, upon any one subject-matter inthat if the defendants were entitled to cancel quired of, to be read if a part of them is read.

The subject-matter inquired of by the defendthe contract, their motive was immaterial.

ants and the answers given in the interrogaOn this point the jury were told:

tories excepted to, related to the lumber man

ufactured by the plaintiff during the period “The defendants would have no right to cancel this contract merely because the plaintiff covered by the contract. There was a sufrefused to revise the price schedule. No in- ficient identity of the matters inquired about ference should be drawn against any party to a to allow the admission of the answers. contract if he stands on his contract and on his [13] 10. On the issue of damages the jury legal rights under it. Assuming that was the were fully and accurately instructed. Many reason for cancellation and the only ground for questions of fact were involved, including the cancellation that existed at the time, the cancel- question of the available market for the goods. lation would not be justified. Assuming that was See McLean r. Richardson, 127 Mass. 339. a reason for cancellation but at the same time there was a good ground for cancellation be- The duty of the plaintiff to mitigate the cause of unreasonable delays in delivery, the damage did not necessarily require the jury to defendants would have a right to insist upon consider the price paid by the General Electhe unreasonable delays provided in your con- tric Company to the defendants. The defendsideration of the case you find the delays were ants cannot complain because of the refusal a breach of the contract."

to give the nineteenth request.

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(148 N.E.) (14) 11. Requests 12 and 13, relating to , 6. Bills and notes 94(2) Acceptance of the cancellation of certain portions of the note by payee in repayment of amount over. General Electric Company's contract with paid maker held sufficient consideration. the defendants, were refused properly. Even Payee's acceptance of note in repayment if that company canceled portions of its con- of amount which he had overpaid maker was

sufficient consideration. tract, it would not be conclusive that the defendants were entitled to cancel their con- 7. Bills and notes 370—Absence of contract with the plaintiff, and as we construe sideration not defense if plaintiff holder in the bill of exceptions, the General Electric due course. Company never did cancel any part of its In view of G. L. c. 107, $ 74, absence of concontract. These instructions, therefore, be- sideration of note would not be defense as came immaterial.

against holder in due course. 12. The testimony of the witness Moore

8. Sunday em 13–That note made and dated was not subject to exception.

on Sunday held not to invalidate it. We have examined all the questions argued in the defendant's brief. We find no error in does not of itself render it invalid, unless there

That a note was made and dated on Sunday the conduct of the trial.

was delivery on Sunday. Exceptions overruled.

9. Sunday em 23—Evidence held to warrant

finding that note was not delivered on Sun-
day.

Payee's evidence held to warrant finding
BANCA ITALIANA DI SCONTO V. COLUM- that it was not delivered on Sunday.
BIA COUNTER CO.

10. Sunday 23 - Note presumed to have (Supreme Judicial Court of Massachusetts.

been delivered on secular day. Suffolk. May 25, 1925.)

In 'absence of evidence that note was de

livered on a Sunday, it will be presumed in law 1. Bills and notes Om517 – Finding that note that it was delivered on a secular day and was was executed by maker's president held war. not a void instrument. ranted.

Eridence held to warrant finding that de- 11. Bills and notes w29—Maker ordinarily fendant's president executed note, claimed to be

bound under laws of place where note payaa forgery, notwithstanding his testimony to the

ble. contrary.

Maker of note is ordinarily deemed to be

bound in accordance with the laws of the place 2. Corporations am 432(12)-Evidence held to where it is payable. show execution and delivery of note by president and assistant treasurer were ratified.

12. Trial @mw251 (7)-Whether note construed Evidence held to warrant finding that execu by law of Italy or Massachusetts being immation and delivery of note by president and as terial, requests on subject properly denied. sistant treasurer of corporation were ratified It being immaterial whether note was to be by its officers, stockholders, and directors.

construed by laws of Italy or those of Massa3. Corporations 426(6)-Ratification of of. chusetts, where there was no evidence that it ficers' execution of note need not be by formal was invalid in either jurisdiction, requests on vote.

that subject were rightly denied. It was not necessary that ratification of 13. Trial C 253(5)-Denial of request excludpresident and assistant treasurer's execution

ing liability on ground of ratification held and delivery of note should be by formal vote without error. of directors, if corporation acting through prop In action against corporation on note exer officers knew that pote was given in settle-ecuted by its president and assistant treasurer, ment of creditor's claim against it, and assented thereto.

defendant's requests that, if by its by-laws it

did not authorize president to sign note, and 4. Corporations am 433(2)-Whether corpora- if by-laws expressly provided that such notes tion ratified president and assistant treasur. could be signed for it only by treasurer or aser's execution and delivery of note held for sistant treasurer as such, it was not liable, jury.

were rightly denied, as they excluded liability Whether there was ratification by corpora

on ground of ratification. tion of its president's and assistant treasurer's execution and delivery of note held under evi-14. Trial Cm 260 (1)--Refusal of requests coy.

ered by charge held without error,

It was not error to refuse requests which 5. Corporations Ow426(1) Ratification may were covered by the charge. be found from acts presumed to have been performed under corporation's authority.

15. Witnesses Om 240(2)-Trial judge has disRatification of officer's act may be inferred

cretion to permit leading questions on direct from corporate acts, which may be presumed

examination. to have been performed under corporate au

It is within discretion of judge to allow

leading questions on direct examination. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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16. Appeal and error om 1043(6)-Defendant “(3) If the instrument sued on was given

not harmed by admission of answer to cross to be used for an illegal purpose, the plaintiff interrogatory; deponent having given same cannot recover. testimony in answer to direct interrogatory. (4) If the person who signed the instru

Defendant was not harmed by admission of ment sued on signed it without authority of answer to cross-interrogatories, where depo- the defendant, the plaintiff cannot recover." nent had previously given substantially the same

“(6) The instrument being payable in Bostestimony in answer to direct interrogatory. ton, Mass., is governed by the law of Massa

chusetts. 17. Depositions Ow65 – Cross-interrogatories "(7) If the law of a foreign country is not

as to whether maker of note tendered mer- proved, then the law of Massachusetts is apchandise to payee and details thereof prop- plicable to the case. erly admitted.

“(8) Even if the instrument were valid in the In action on note, alleged to have been give country where it is alleged to have been made, en by maker to reimburse payee for amounts it is invalid in Massachusetts if the jury finds paid to maker for goods not ordered, plaintiff's that it was made on Sunday and was payable in cross-interrogatories to payee as to whether Massachusetts. merchandise was tendered by maker or one

“(9) If the instrument sued on, even if a acting on its behalf, and, if answer was in af- valid instrument in the country where it is alfirmative, then to state nature of merchandise leged to have been made, would be invalid or and details of shipment and acceptance, were void if made in Massachusetts, it cannot be enproperly admitted.

forced in Massachusetts.

“(10) Even if the instrument is valid where 18. Depositions Ow65–Objection to cross-in- it is alleged to have been made, it cannot be enterrogatory, on ground that delivery of note in forced in Massachusetts if such enforcement suit was assumed, not sustained.

would be against a Massachusetts statute or Exception to cross-interrogatory, on ground

against public policy. that delivery of note in suit was assumed but Sunday and payable in Massachusetts, it can

“(11) If the instrument sued on was made on had not been proved, cannot be sustained, where deponent had previously testified without because such enforcement or collection would

not be enforced or collected in Massachusetts, objection that defendant's Italian representa- be in violation of Massachusetts statute law tives had delivered the note.

and against public policy. 19. Trial Cmw 191(3)-Charge held not to as

“(12) If the jury finds that the signature upsume that note was genuine.

on the instrument sued on was forged or made

without authority of Charles D. Malaguti, then Charge that purport of testimony was that the instrument is wholly inoperative and the transaction between maker and payee was ad- plaintiff cannot recover. G. L. 107, § 45. justed by giving of note in suit, in connection

"(13) If the jury is satisfied that the title of with instructions relating to its genuineness, Alinovi Guisseppi to the instrument sued on where jury were further told that genuineness was defective, then the burden is on the plainwas fact for them to pass on, held not objection- tiff to prove that it is a holder in due course. able as assuming genuineness of note.

G. L. 107, § 82.

“(14) If the by-laws of the Columbia Coun20. Pleading om 236 (6) Refusal to allow amendment to answer held discretionary.

ter Company do not give authority to its presi

dent to sign instruments such as that sued In action on note, refusal to allow defend- on, then the defendant is not liable in this case. ant's motion to amend its answer denying cor “(15) If the by-laws of the defendant Columporate existence of defendant corporation rest- bia Counter Company expressly provide that ed in sound discretion of court,

instruments like that sued on may only be 21. Appeal and error Omm 1078(1)-Motions not sistant treasurer acting as such, then the de

signed for the company by its treasurer or asargued are waived.

fendant is not liable in this case. Motions which are not argued are waived. *(16) If an officer of the defendant corpora

tion signed the instrument sued on without auExceptions from Superior Court, Suffolk thority of the corporation the corporation is County; John D. McLaughlin, Judge. not liable unless there was express ratification

of the act by the corporation. Action of contract by the Banca Italiana "(17) If the jury finds that the Columbia Di Sconto against the Columbia Counter Counter Company is liable on the instrument Company, to recover on promissory note of sued on, then it must find that Charles D. which plaintiff was indorsee. Case was tried Malaguti is not liable. with action brought by same plaintiff against

“(18) If the jury finds that Charles D. MalaCharles D. Malaguti, president of the Colum- guti is liable as alleged in the suit against him, bia Counter Company. Finding for plaintiff, ble on the instrument sued on in the suit

then the Columbia Counter Company is not liaand defendant excepts. Exceptions over

against it." ruled.

“(21) If February 29, 1920, was Sunday, and The defendant also presented the follow the instrument sued on was payable in Boston,

Mass., then all holders of the instrument are ing requests for rulings:

presumed to have taken it in contemplation of "(1) If the instrument sued on was made on the Massachusetts law with respect thereto and Sunday, it is void, and the plaintiff cannot re- full knowledge that under Massachusetts law cover in this action."

the instrument was illegal and void.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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