of them odors are thrown off at times which are offensive and disagreeable, but as those discharged by the defendant are not injurious to the lives or health of normal persons, it cannot be held that a nuisance exists in view of the findings of the master to the contrary. [4] It is a matter of common knowledge that in thickly settled manufacturing communities, the atmosphere is inevitably impregnated with disagreeable odors and impurities. This is one of the annoyances and inconveniences which every one in such a neighborhood must endure. Mere discomfort caused by such conditions without injury to life or health cannot be ruled as matter of law to constitute a nuisance. Each case must depend upon its own facts and no rule can be formulated which will be applicable to all cases. Rogers v. Elliott, 146 Mass. 349, 15 N. E. 768, 4 Am. St. Rep. 316; Downing v. Elliott, 182 Mass. 28, 64 N. E. 201; Stevens v. Rockport Granite Co., supra. As to the other grounds of complaint it is found that the explosions are not of sufficient frequency to constitute a nuisance, and that the fires create no danger of fire spreading in the neighborhood of the plaintiffs' property. As there is no finding that any plaintiff has suffered from fear or fright by reason of either explosions or fires, it follows that it cannot be said as matter of law that any act of the defendant constituted a nuisance. Cremidas v. Fenton, 223 Mass. 249, 111 N. E. 855; Mansfield v. Atlantic Chemical Co., 237 Mass. 56, 129 N. E. 601; Stevens v. Dedham, 238 Mass. 487, 131 N. E. 171; Prest v. Ross, 245 Mass. 342, 139 N. E. 792. The cases of Sardo v. James Russell Boiler Works, 241 Mass. 215, 135 N. E. 127, and Cumberland Corp. v. Metropoulos, 241 Mass. 491, 135 N. E. 693, cited by the plaintiffs, are distinguishable in their facts from those in the case at bar. [5, 6] The question remains whether the defendant had conducted its business in conformity with the licenses granted to it. It is settled that under statutes similar to those under which the defendant was granted the licenses, if the licensee has complied in all respects with the terms, what he does thereunder cannot be considered a nuisance or be restrained, even if without such licenses the acts done would be a nuisance. Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519; Commonwealth v. Parks, 155 Mass. 531, 30 N. E. 174; Murtha v. Lovewell, 166 Mass. 391, 44 N. E. 347, 55 Am. St. Rep. 410; Com monwealth v. Packard, 185 Mass. 64, 65, 66, 69 N. E. 1067; Levin v. Goodwin, 191 Mass. 341, 77 N. E. 718, 114 Am. St. Rep. 616; Whitcomb v. Vigeant, 240 Mass. 359, 134 N. E. 241, 19 A. L. R. 1439; Sawyer v. Boston Elevated Railway, 243 Mass. 469, 137 N. E. 648; Curran v. Boston Elevated Railway, 249 Mass. 56, 58, 143 N. E. 821. The finding in substance that there has not been any failure on the part of the defendant to comply with the statutes or the conditions of its licenses and that it has not made any unlaw. ful or improper use of the premises is conclusive and constitutes a complete defense to the bill. The case of Commonwealth v. Kidder, 107 Mass. 188, is distinguishable from the case at bar. In that case it was said at page 193 that the statute there in question was "manifestly intended to protect the pub. lic against the dangers arising from the explosive and inflammable nature of petroleum." The decision in that case only goes to the extent of holding that a statute or license will not be a protection in cases where dangerous or objectionable elements can be eliminated by a proper conduct of the business. Sawyer v. Davis, 136 Mass. 239, 245, 49 Am. Rep. 27. As petroleum cannot be refined without creating odors, and as the master's findings show that the defendant had exercised reasonable diligence to minimize such odors, and as it does not appear that further or additional precautions can reasonably be adopted to prevent the escape of such odors, the Kidder case is not at variance with the conclusion reached in the case at bar. [7] The exception to the admission by the master of a letter from the commissioner of public health to Edward E. Willard cannot be sustained. It was admitted only "as having a possible bearing upon the question of the issuance of an injunction," and was held incompetent for any other purpose. It is plain that if incompetent for the limited purpose for which it was admitted, and which we need not decide, its admission did not prejudice the rights of the plaintiffs. The remaining exceptions to the master's report have been carefully considered; they need not be referred to in detail as it is manifest from what has already been said that none of them can be sustained. As the findings disclose no error of law the decree overruling the plaintiffs' exceptions and confirming the report, and the final decree dismissing the bill, must be affirmed. Ordered accordingly. (146 N.E.) the goods, and its transfer in due form trans NATIONAL WHOLESALE GROCERY CO. v. fers the goods. (Supreme Judicial Court of Massachusetts. 1. Sales 397-In purchaser's action to recover part of price collected by seller under letter of credit, letter to seller from bank issuing letter held improperly admitted. In action by purchaser of sugar to recover part of purchase price collected by seller under letter of credit, on ground that part of goods had not complied with contract, receipt in evidence of letter to seller from bank issuing letter of credit, which contained inaccurate statements of terms of contract between plaintiff and defendant, held error. 2. Banks and banking 191-Bank held bound by letter of credit, notwithstanding letter to person in whose favor credit was issued. Bank, issuing letter of credit to purchaser of goods, and intrusting it to such purchaser for delivery to seller, is bound on seller's acceptance of it, regardless of letter which it sends directly to seller stating different terms, nor is seller bound to acknowledge such letter. 3. Banks and banking 7. Sales 62, 180(1)-Contract for purchase of sugar held entire, and purchaser not entitled to revoke in part and accept in part. Contract for purchase of "about 100 tons white Java sugar packed in bags. Net landed weights to govern. Adjustment on final weights"-held an entire contract, and buyer not entitled to treat each bag as separate purchase and reject part and accept part. * 8. Sales 442 (2)-Measure of damages for seller's breach of warranty in contract for sale of goods stated. Measure of damages for seller's breach of warranty of quality in contract sale of goods delivered and accepted by buyer is difference between market value of property contracted to be sold, in condition required by contract, at time and place stipulated, and actual market value. 9. Payment 73 (4) Retaining of check without cashing it held not to require finding of intent to take it in payment or on account. In action by purchaser of sugar to recover of seller part of purchase price collected by him 191-Seller of sugar under letter of credit, fact that plaintiff retainheld not to have violated contract by collect- ed check tendered by defendant for adjustment ing on letter of credit before arrival of ship-on account of weights without cashing it held ment. not to require finding of intent to accept it in payment or on account. Where contract for purchase of sugar provided for payment on seller's presentation "of delivery order or warehouse receipt against irrevocable letter of credit," held, seller did not violate contract by collecting on letter of credit by draft with delivery order attached on second day before letter of credit expired, though ship carrying shipment did not arrive at destination until several days later. 4. Sales 79-Under simple "c. I. f." contract, seller has no obligation to deliver to port of destination. Under a simple c. i. f. contract, there is no obligation on part of seller to deliver at port of destination; "c. i. f." meaning that price named covers cost, insurance, and freight. 5. Sales 202 (6)-Contract held not simple c. i. f. contract, but one under which title did not pass at port of shipment; "delivery order." * Contract for sale of sugar, which contained provisions, "Sound packages only to be delivered," "Net landed weights to govern." and "Payment upon presentation of delivery order or warehouse receipt against irrevocable letter of credit," held not a simple c. i. f. contract, but one under which title did not pass at port of shipment; delivery order meaning paper issued by owner of goods to person holding them in his behalf, requesting delivery to another. 6. Carriers 51-Shipping lading defined. 10. Evidence 142(4)-Evidence of value of sugar other than of quality involved held erroneously admitted. In action by purchaser of white java sugar to recover of seller part of price collected by him under letter of credit, on ground that part of goods delivered was not of quality warranted, evidence of value of American raw sugar at a time several months after transaction involved held irrelevant and improperly admitted. Exceptions from Superior Court, Bristol County. Action of contract by the National Wholesale Grocery Company against William Mann to recover part of contract price paid for Java sugar purchased by plaintiff from defendant. On defendant's exceptions to court's rulings on admissibility of evidence, and on requests for rulings and instructions. Exceptions sustained. D. R. Radovsky and H. W. Radovsky, both of Fall River, for plaintiff. J. C. Coughlin, of Boston, for defendant. RUGG, C. J. This action of contract is brought to recover a part of the contract price paid for Java sugar purchased by the plain106-Bill of tiff of the defendant. There are two counts in the declaration on which the case was tried: One alleges that the defendant owes the plaintiff $13,000 with interest; the other alleges a written contract whereby the de A bill of lading is a document issued by a carrier on sea or land, showing a contract for carriage and delivery of goods; it represents For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fendant sold to the plaintiff Java sugar, that the defendant made use of a letter of credit in payment thereof before the time permitted by the contract and collected full price for the sugar, namely $47,600, that the defendant, although required to make delivery in sound packages, delivered a large number of unsound packages, which the plaintiff refused to accept and offered to return, and thereafter sold same on account of defendant, and that the defendant owes the plaintiff $13,000. The contract was in writing. It was dated May 3, 1920, but apparently was finally executed and delivered by the plaintiff on May 12, 1920. So far as material to the present controversy, its terms were: "This is to confirm sale made by Wm. Mann, Boston, Mass., to National Wholesale Grocery Co., Fall River, Mass.. about one hundred tons of 2,240 lbs. each white Java sugar packed in bags of about two (2) cwt. each. Sound packages only to be delivered. "At twenty-one and twenty-five (21.25) cents, c. i. f. New York, in bond. "Net landed weights to govern. Adjustment on final weights. "Shipment to be made approximately as fol The sugar sold to the plaintiff was part of a larger lot previously purchased by the defendant under a contract similar in all respects. Under date of May 11, 1920, the plaintiff wrote to the defendant a letter the material parts of which are: "Referring to your confirmation of May 6th, covering about one hundred (100) tons of white Java sugar for May or June shipment, we are enclosing you herewith thirty-day sight letter of credit opened in your favor by the National Exchange Bank of this city [Providence], under their No. 102 in the amount of fifty thousand dollars ($50,000). You will please note same is made available until August 15, 1920, and can be negotiated against either warehouse receipt, delivery order or bill of lading. The National Exchange Bank is writing you direct confirming same." On May 12, 1920, the plaintiff wrote to the defendant enclosing the contract above quoted, signed by it. The defendant accepted the letter of credit after the plaintiff had agreed to pay the defendant the charges for revenue stamps and for discounting the thirty day draft offered in payment of the net cash required by the contract. The letter of credit was not in evidence. [1, 2] The admission in evidence of the letter of the National Exchange Bank to the defendant under date of May 11, 1920, was contract between the plaintiff and the defendant therein contained was inaccurate and contained important variations. It differed in its statement of the terms of the letter of credit from those contained in the plaintiff's letter of the same date to the defendant already quoted. The bank was bound by its letter of credit, which it entrusted to the plaintiff as its customer to deliver to the defendant and which the defendant accepted. That was a distinct contract from the one between the plaintiff and the defendant. Moss v. Old Colony Trust Co., 246 Mass. 139, 151, 152, 140 N. E. 803. This letter of the bank was not acknowledged by the defendant, who apparently paid no attention to it. He was not bound by it in any particular. His rights are not affected by it. He was under no legal obligation to answer it. Jennings v. Wall, 217 Mass. 278, 282, 104 N. E. 738. Moreover, this letter of the bank antedated the delivery by the plaintiff of the contract between the parties hereto and could not affect its terms. All previous or contemporaneous oral or written negotiations were merged in the contract as finally phrased in writing Jen nings v. Puffer, 203 Mass. 534, 89 N. E. 1036; Goldenberg v. Taglino, 218 Mass. 357, 359. 105 N. E. 883; Snider v. Deban, 249 Mass. 59, 144 N. E. 69. [3] There was no violation of the contract by the defendant in collecting on the letter of credit when he did. It was undisputed or established that on August 10, 1920, the defendant sent a delivery order and a pro forma invoice covering 224,000 pounds of sugar to the bank, and on August 14, 1920, collected on the letter of credit $47,600. The delivery order was addressed to the delivery clerk of the S. S. Rondo at a New York dock, directing him to deliver to the order of the plaintiff the sugar called for by the contract. Consular invoice and extracts from the original bill of lading respecting the sugar were sent by the defendant to the plaintiff on August 21, 1920. the ship having arrived the day before. It began discharging cargo, and a representative of the plaintiff examined bags as they were put on the pier. Ultimately 1,004 bags purporting to contain the sugar called for by the contract were delivered to the plaintiff and taken into its possession and either shipped or stored by it. Confessedly 748 of these bags conformed to the contract. The present controversy centers about the remaining 256 bags. The plaintiff contends that these were not "sound packages" as required by the contract, 44 being "stained" or wet, 40 "slack" and 172 "torn and mended." The plaintiff notified the defendant on September 27, 1920, that it rejected these bags and that it was drawing on him for the contract price thereof with warehouse receipt Mass.) NATIONAL WHOLESALE GROCERY CO. v. (146 N.E.) MANN ant refused to accept the draft. The present | Smith Co., Ltd., v. Marano, 267 Pa. 107, 110 [4] The contract of the parties was in owner. [5] The parties in the case at bar did not make a simple c. i. f. contract. Although using those letters as descriptive of their contract, they superimposed three other provisions of significance, all at variance with the implications of a simple c. i. f. contract. [6] (1) One modification is that payment is Nothing is to be made "upon presentation of delivery order or warehouse receipt." said about presentation of the usual documents or any equivalent term. On the contrary the seller has the option of presenting one or the other of these two specified papers, neither of which is required under a strict c. i. f. contract. A warehouse receipt manifestly could not be delivered until the goods had been landed and stored in a warehouse. The present contract makes no reference to a bill of lading. The simple c. i. f. contract requires the seller to present a bill of lading as one of the documents to which the buyer is entitled. That is a document issued by a carrier on sea or land showing a Transfer of it in contract for carriage and delivery of goods. It represents the goods. due form transfers title to the goods. Rowley v. Bigelow, 12 Pick. 306, 314, 23 Am. Dec. 607; Stollenwerck v. Thacher, 115 Mass. 224, 226, 227. A delivery order is a paper issued by the owner of goods, directed to a person holding them in his behalf, requesting delivery to another. It may or may not pass title to goods, according to circumstances. It is something which entitles the holder to the possession of goods either at once or at some future time. McEwan v. Smith, 2 H. L. c. 309, 326; Imperial Bank v. London & St. Katharine Docks Co., 5 Ch. D. 195; Gunn v. Belckow, Vaughan & Co., L. R. 10 Ch. App. 491, 502; Jenkyns v. Osborne, 7 Man. & Gr. 678, 699, 670. There is nothing in this record to show any peculiar meaning attaching to delivery The delivery order was addressed order. to the delivery clerk of a named steamship at a particular pier, and was accepted by the The extract from buyer without objection as being in compliance with the contract. the original bill of lading sent to the buyer with the consular invoice, we interpret to refer to the bill of lading to the importer of the entire shipment of Java sugar and not to the particular lot sold to the plaintiff. (2) Another modification of the simple c. i. f. contract made by the parties in the case at bar was: "Net landed weights to govern, Adjustment on final weights." These words manifestly can be given effect only by ascertaining and establishing the weights after the cargo has been discharged and the sugar put on the dock at destination and the weight of the containers determined and deducted. The exact amount of sugar deliver ed and the precise amount to be paid de- | stipulated amount of sugar, with the slight pend upon the verification of these facts aft- variation in quantity and the approximation er arrival at port of consignment. to exactness implied by and permissible under the word "about." Freeman v. Hedrington, 204 Mass. 238, 90 N. E. 519, 17 Ann. Cas. 741. Although the sugar was sold by weight and the total value was to be ascertained by a calculation based on the number of pounds, it still was one bargain, a single contract. This is settled by our own decisions. Clark v. Baker, 5 Metc. 452; Morse v. Brackett, 98 Mass. 205; Mansfield v. Tregg, 113 Mass. 350; Craig v. Lane, 212 Mass. 195 98 N. E. 685; Carver-Beaver Yarn Co., Inc., The plaintiff as buyer could not treat each bag as a separate subject of sale, but must accept or reject the shipment as a whole. It could not accept part and reject part. Roach v. Lane, 226 Mass. 598, 116 N. E. 470. The same evidence was introduced as to the law of New York on this point as was before the court in Shohfi v. Rice, 241 Mass. 211, 135 N. E. 141, where at 214, 135 N. E. 142, it was said: (3) The third significant provision is: "Sound packages only to be delivered." While these words might be given effect by interpreting them to mean delivery on board at the port of shipment, it seems more natural in the circumstances of this contract and its subject matter to attribute to them the meaning that the packages were to be sound at the time when there was a separation of the particular packages destined for the plaintiff under the contract, from the larger mass in which they were commingled v. Wolfson, 249 Mass. 257, 143 N. E. 919. at the time of original shipment and during the voyage. Apparently the sugar sold to the plaintiff was part of a larger quantity owned by the defendant, and his sugar in turn was part of a still larger bulk constituting the importation. The parties doubtless knew the course and customs of the trade. In this context these words may be thought to refer to the time when the sugar of the plaintiff would be identified and set apart for it. Scudder v. Worster, 11 Cush. 573. Keeler v. Goodwin, 111 Mass. 490, 491. Chandler Grain & Milling Co. v. Shea, 213 Mass. 398, 400, 100 N. E. 663. Moreover, there is much in this record to indicate that the parties themselves interpreted these words touching delivery as referring to the physical transfer of goods to the possession of the buyer. The conduct and correspondence of the defendant is susceptible of the inference that he conceded that he ought to repay to the plaintiff a just amount on account of the forty stained bags. If the agreement between the parties were a strict c. i. f. contract, the risk of the bags becoming stained or wet during the voyage rested on the plaintiff, and his remedy would be by claim under the insurance or possibly against the shipowner. Without emphasizing any one of these three modifications above another, or depending upon any one alone, their collective force compels the conclusion that this was not a simple and strict c. i. f. contract. It follows from these considerations that the ordinary terms of a c. i. f. contract were modified by specific stipulations of the parties. It could not rightly be ruled that title to the sugar passed at port of shipment. The contract taken as a whole contemplated a delivery and transfer of title at port of discharge of cargo. The defendant's requests for rulings, numbered 3 to 8, inclusive, were denied rightly. Klipstein v. Dilsizian (C. C. A.) 273 F. 473, 475, writ of certiorari denied 257 U. S. 639, 42 S. Ct. 51, 69 L. Ed. 410; Willits & Patterson v. Abekobei, 197 App. Div. 528, 189 N. Y. S. 525; Schopflocher v. Essgee Co. of China, Inc., 197 App. Div. 781, 189 N. Y. S. 498; Geo. Carocopos, Inc., v. Chieves, 203 App. Div. 104, 196 N. Y. S. 425; 1 Williston on Sales (2d Ed.) § 280f. "The uniform doctrine of these decisions * * is that the contract in question was entire, and the defendants having accepted and retained part of the goods became bound to pay for the whole shipment." It follows that in any aspect of the case the ruling, to the effect that under the terms of the contract the plaintiff had a right to refuse to accept any packages that were unsound, was erroneous. The plaintiff, having accepted a great part of the shipment, was bound to pay for the whole. Remedy exists for whatever breach of contract may be shown. [8] The rule of damages by which the plaintiff under appropriate pleadings may recover is the one ordinarily applicable in actions by a buyer for breach of warranty in a contract for the purchase of goods delivered to and accepted by him. That rule is the difference between the market value of the property contracted to be sold in the condition required by the contract at the time and place stipulated, and its actual market value. New York Central Railroad v. Freedman, 240 Mass. 200, 209, 133 N. E. 101; Leavitt v. Fiberloid Co., 196 Mass. 440, 453, 82 N. E. 682, 15 L. R. A. (N. S.) 855; F. W. Stock & Sons v. Snell, 226 Mass. 499, 504, 116 N. E. 263; Tuttle v. Brown, 4 Gray, 460, 64 Am. Dec. 80; Brown v. Bigelow, 10 Allen, 242; Stiles v. White, 11 Metc. 358, 45 Am. Dec. 214. The alleged failure on the part of the defendant to deliver sound packages amounted to a breach of warranty and nothing else, in the circumstances disclosed. The evidence as to the value of the sugar for the purpose of determining the damages must conform to this rule. [9] The check sent by the defendant to the |