(146 N.E.) 1, 8, 140 N. E. 294, and cases there collected. The order recommitting the case to the board for a hearing on its merits, although contrary to the correct interpretation of the act as expounded in Kareske's Case, neverthless was a valid order because within the jurisdiction of the superior court. It was binding upon the parties. It was the law of the case. It stood until vacated or reversed. [4] The filing by the employee of the petition on September 22, 1924, was manifestly wrong. That petition showed on its face that that very matter already had been adjudicated by one judge of the superior court by hearing. The employee made a motion that the board member dismiss the case for want of jurisdiction, because (1) the matter was pending before the superior court on petition for the issuance of a decree in conformity to the agreement for compensation approved by the board; and (2) the only question open for consideration at that time was whether the employee was incapacitated for work as a result of the injury. That motion was granted. Manifestly that hearing was not in compliance with the order of the superior court of July 30, 1924. The decision of the single member, granting the motion of the employee, appears to have been filed on Sep-ordering the case recommitted to the board tember 22, 1924, which was after the order of the superior court recommitting the matter to the board. That decision does not appear on this record to have been based on the notion that the employee's appeal from that order suspended its operation, although allegation to that effect was in the petition of September 22, 1924, to which reference presently will be made. That order was in the nature of an interlocutory decree, which took effect and was binding on the parties and on the board notwithstanding an appeal to this court. Such an appeal from an interlocutory matter cannot be entered in this court, except by report of the judge, until there is a final decree. Hutchins v. Nickerson, 212 Mass. 118, 120, 98 N. E. 791; Churchill v. Churchill, 239 Mass. 443, 445, 132 N. E. 185; Weil v. Boston Elevated Railway, 216 Mass. 545, 104 N. E. 343. On September 22, 1924, the employee filed a petition in the superior court setting forth the proceedings which we have narrated and praying for a decree for payments to be made in accordance with the original agreement between the parties. Final decree was entered in accordance with that petition on October 1, 1924. The insurer appealed from that decree. for further hearing. It would be most unseemly for one judge to enter a decree diametrically opposed to a previous order en. tered in the same case on the same matter by one of his colleagues and not revoked or vacated. Presumably the final decree must have been founded on the idea that that previous order was pending in this court on appeal. But whatever may have been the reason, a final decree could not rightly have been entered while the previous order recommitting the case to the board stood unrevoked. There was nothing rightly before the judge for action at the time the final decree was entered. The case was not ripe for final decree. The final decree is reversed. The order of July 30, 1924, recommitting the case to the board is reversed. The case is to stand for further hearing on the question of the form of decree to be entered. Unless other material factors have intervened, a final decree ought to be entered enforcing the terms of the agreement between the employee and the insurer of September 25, 1923. So ordered. NEW YORK, N. H. & H. R. Co. v. PREFER- 1. Evidence 433 (9)-Parol testimony and [2, 3] The order of the superior court recommitting the case to the board for a hearing on the merits was within the jurisdiction of that court. The only way an agreement of the parties or a decision of the board as to compensation can be enforced is by a proceeding in the superior court. With respect to such proceeding the jurisdiction of that court is complete. That order was erroneIn action on note given pursuant to agreeous in law. When parties have entered into ment for sale of land, parol testimony and origan agreement under the act and such agree-inal draft copy of such agreement held erronement has been approved by the board, further inquiry as to the merits of the liability of the insurer is at an end, in the absence of fraud or mistake. That was settled by Kareske's Case, 250 Mass. —, 145 N. E. 301, decided several months after the entry of that order of the superior court in the case at bar. An error of law in making a decision by a judge is not excess or lack of jurisdiction. Goulis v. Judge of District Court, 246 Mass. ously admitted for purpose of showing that word "unable" had been inadvertently used in place of "able." 2. Evidence 433 (9)-Suit for reformation proper remedy for correction of instrument wherein particular word was inadvertently used. Suit in equity to reform instrument held proper remedy to correct erroneous use therein of word "unable" in place of "able," and re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sort to parol evidence in action at law involv-500; that the original note for $24,500 ing such instrument was not permissible. 3. Vendor and purchaser 46-Word "unable" held obviously used mistakenly for word "able" in contract for purchase of land. Where written agreement for sale of land in one place specified rights of parties in event seller was unable to convey good title, and in later provision, which commenced, "If, however," provided for inconsistent result if seller was "unable" to convey title, and purchaser failed to comply therewith, held, that "unable" was obviously used for "able" in such later provision. is the note referred to in paragraph 2 of the defendants' answer and in "paragraph 2 and elsewhere of an agreement dated March 13, 1922," between the plaintiff and the Preferred Underwriters, Inc.; that the note now sued upon was indorsed by the defendant Averill, and received and accepted by the plaintiff under the same terms and conditions as the original note, which was given solely under the terms and conditions, so far as applicable, of the agreement of March 13, 1922; and that the defendant, as the plaintiff knew at the time the note in suit was Exceptions from Superior Court, Suffolk given to it, indorsed the note for the accomCounty; G. A. Flynn, Judge. Action of contract on promissory note by the New York, New Haven & Hartford Railroad Company against the Preferred Underwriters, Incorporated, and others, wherein defendant Charles S. Averill alone appeared to defend. On defendant Averill's exceptions to finding of court for plaintiff, refusal to make requested rulings of law, and to reIceipt of certain evidence. Exceptions overruled. C. F. Choate, 3d, of Boston (R. Proctor, of Boston, on the brief), for plaintiff. G. E. Mears, of Boston, for defendant Av erill. PIERCE, J. This is an action of contract in three counts upon a promissory note for $12,500, dated May 15, 1922, payable to the plaintiff with interest in 15 days from its date. The first count is against all the defendants, the second against the Preferred Underwriters, Inc., as maker, and the third against the indorsers, of whom the defendant Charles S. Averill was one. The defendant Averill alone appeared to defend the action, and set up in answer a general denial and also the terms of an agreement, dated March 13, 1922, of which he was to have the benefit and which, he contended, discharged him from liability. The judge of the superior court before whom the action was tried found for the plaintiff, and the case comes to this court upon the defendant Averill's exceptions to this finding, to the court's refusal to make certain rulings of law requested by him, and to the admission of certain evidence. By agreement of counsel the judge found that the plaintiff is the holder of the note; that due presentment, demand and notice were made upon and given to the defendant; and that the note has never been paid. He further found that the note for $12,500 is the last of several notes which had been given in part payment on an original note for $24,500, dated March 8, 1922, which by successive payments of cash had been reduced on May 15, 1922, to the said sum of $12, modation of said Preferred Underwriters, Inc. Before the execution of the agreement of March 13, 1922, the plaintiff had signed, acknowledged and delivered in escrow to the State Street Trust Company a deed of certain land in Boston. At the request of the Underwriters the deed of the plaintiff, as grantor, ran to the The Bostonian, Inc., as grantee, and was to be held and disposed of by the State Street Trust Company in accordance with the conditions enumerated in the agreement; that is, in substance, the plaintiff agreed to sell and the Underwriters agreed to pay as the purchase price of the land $1,505,008; the sum of $10,000 previously paid was to be credited as a payment on the purchase price "provided the terms of [the] agreement [were] fully performed by said Underwriters"; $25,000 was to be paid to and received by the plaintiff on the execu tion of the agreement, in a certified check for $500, in a note of $24,500 of The Bostonian, Inc., dated March 8, 1922, payable in fifteen days and indorsed by Preferred Underwriters, Ins., C. S. Averill, M. B. Hayes, and William H. Sellers; $715,000 in cash or a certified check to be paid on or before May 15, 1922, and the balance by promissory note of "The Bostonian, Inc.," secured by mortgage on the premises, payable on or before July 15, 1922. May 15, 1922, was the time fixed for the delivery of the deed at the registry of deeds to The Bostonian, Inc., provided the title to the premises was free from all incumbrances except such as are set forth in the deed, the taxes as of April 1, 1922, and such fncumbrances as may be specifically waived by the Underwriters. The agreement further provided if the payments were made in full the plaintiff would pay the underwriters interest on $10,000 from December 28, 1921, to the date of the delivery of the deed, and interest on the $25,000 from March 23, 1922, to the date of the delivery of the deed. It further provided that the deed and mortgage may be delivered and the consideration paid at any time prior to May 15, 1922, upon which the parties may agree. The controversy in the case turns upon (146 N.E.) the use of the word "unable" in the tenth line of the second paragraph of Article VI of the agreement of March 13, 1922, as printed in the record. Article VI reads as follows: "In case said Underwriters shall not comply with the terms and conditions set forth in articles II and III thereof, then said deed shall be delivered by said trust company to said railroad company, and thereafter none of the parties hereto, including said trust company, shall be under any further liability on account of this agreement except as hereinafter set forth. At this point in the examination of the vice president, "the defendants admitted that the railroad company was able to transfer the property and the Preferred Underwriters were unable." The vice president then testified, in substance, that the plaintiff had an optional agreement drawn, which draft, with certain changes in dates, was recopied by a stenographer in his office with the result that the word "able" near the end of the draft, without the knowledge of the parties to the agreement became "unable" in the agreement executed March 13, 1922. The draft given the stenographer to copy into the final agreement was then offered and received in evidence, subject to the exception of the defendants. "If the railroad company shall be unable to convey said title free from all incumbrances except as that set forth, said railroad company shall, on the redelivery of said deed, to wit, by said trust company pay to said Under- [1, 2] The testimony of the vice president writers the sum of $10,000 heretofore paid to of the plaintiff, the testimony of the presithe railroad company and referred to in para-dent of the Preferred Underwriters, Inc., and graph 2 hereof, and the said sum of $25,000 the draft copy of the agreement of Decempaid to said railroad company at or prior to ber 28, 1921, were received in evidence the execution of this agreement, it being understood that this agreement in so far as it wrongly. In the absence of an obvious misrefers to said $25,000 is contingent upon said take, a plaintiff in an action at law cannot note for $24,500 above mentioned having been correct by parol evidence substantial errors paid. If, however, the said railroad company in the terms of a written instrument to which shall be unable to convey a title as above pro- he and the defendants are directly or medialvided, and said Underwriters shall fail to com-ly parties, the remedy of parties so situatply with each and every condition to be by them ed being in a court of equity for reformacomplied with hereunder, said railroad company tion of the instrument. Canedy v. March, may retain said $10,000 and said $25,000 as consideration for entering into this agreement. "The acceptance of the deed by said The Bostonian, Inc., shall be conclusive of the performance by said railroad company of the terms of this agreement." Subject to the exception of the defendant the judge admitted in evidence the testimony of the vice president of the plaintiff and the testimony of the president of the Preferred Underwriters, Inc., to the effect that the plaintiff and the underwriters had previously executed several agreements for the purchase and sale of the land covered by the agreement of March 13, 1922, the one last prior being dated December 28, 1921; that it was the intention of the parties to the agreement dated March 13, 1922, that it should follow the general terms of the agreement dated December 28, 1921, and that the last named agreement contained a provision which reads as follows: "If the railroad company shall be unable to convey said title free from al! incumbrances except as above set forth, said railroad company shall on the redelivery of said deed to it by said trust company pay to said Underwriters the sum of ten thousand dollars ($10,000) paid to said railroad company upon the execution of this agreement, but if said railroad company shall be able to convey a title as above provided, and said Underwriters shall fail to comply with each and every condition to be by them complied with hereunder, said railroad company may retain said ten thousand dollars ($10,000) as consideration for entering into this @greement." 13 Gray, 373; Sawyer v. Hovey, 3 Allen, 331, 81 Am. Dec. 659; Page v. Higgins, 150 Mass. 27, 22 N. E. 63, 5 L. R. A. 152; Commercial Savings Bank of Washington v. Colthurst, 195 Iowa, 1032, 188 N. W. 814, 191 N. W. 787; Minneapolis, St. Paul & Sault Ste. Marie Railway v. Home Ins. Co., 55 Minn. 236, 242, 56 N. W. 815, 22 L. R. A. 390. [3] Without resort to evidence outside the agreement the same result must follow from an examination and analysis of the agreement itself. Williston on Contracts, § 619; Pacific Surety Co. v. Toye, 224 Mass. 98, 112 N. E. 653; Morgan v. Thomas, 9 Q. B. D. 643, 646. The first paragraph of article VI and the first sentence of the second paragraph of that article are declarations of what shall be the legal effect upon the rights of the parties, in case the Underwriters shall not comply with the terms and conditions of articles II and III of the agreement, or in case the railroad company shall be unable to convey the title free from all incumbrances. The second sentence of the second paragraph of the article, beginning with the words “If, however," provides a result if the railroad company shall be unable to convey a title in the manner provided in the first sentence of the same paragraph, which is inconsistent with and hostile to the consequence of such action determined in the first sentence. It is plain the second sentence was intended to provide for a situation which was not fully covered by the first paragraph, and by the first sentence of the second paragraph, and that the second sentence covers such defi ciency if the word "unable" was mistakenly, ter from plaintiff to his broker held not erused for the word "able." ror, in absence of showing that letter was ever It results that the exceptions must be over- mailed in ordinary course. ruled. So ordered. W. R. GRACE & CO. v. NATIONAL (Supreme Judicial Court of Massachusetts. Bristol. Feb. 27, 1925.) Exceptions from Superior Court, Bristol County; Lummus, Judge. Action of contract by W. R. Grace & Co. against the National Wholesale Grocery Company to recover damages for breach of contract for purchase of sugar. Case referred to auditor, who found for defendant. On plaintiff's appeal and exceptions. Appeal dismissed, and exceptions overruled. Wood & Brayton, of Fall River, and Don 1. Reference 101 (3)-Motion to recommit is proper method to question correctness of auditor's rulings on evidence, though other-ald Havens, of New York City, for plaintiff. wise motion is addressed to sound judicial discretion. Where designation of article sold or quality is insufficient to identify such article, or enable one to determine what would be proper fulfillment of contract, parol testimony is admissible to clear up such ambiguity. 3. Evidence 460 (11) — Evidence of sample used by plaintiff's broker in selling sugar, and representations made by him, held admissible in action for purchaser's breach of contract. In action for damages for breach of contract for purchase of "Brazilian washed sugar," where auditor correctly found that such description was insufficient, without more, to identify article sold, held, evidence of sample used by plaintiff's broker and his representations concerning it at time of making contract were properly admitted. 4. Sales 440(3)-Evidence that sugar tendered in fulfillment of contract was unfit for wholesale business held admissible in action for breach of contract. In action for damages for purchaser's breach of contract for sugar, evidence that sugar tendered was unfit for wholesale grocery business held properly admitted, under G. L. c. 106, § 17(2), creating implied warranty. 5. Sales273 (2)-Where goods purchased in reliance on seller's judgment, there is implied warranty of fitness for purpose intended. Where manufacturer or dealer sells goods for particular purpose under circumstances such that buyer necessarily trusts in judgment or skill of seller, there is an implied warranty that goods sold are reasonably fit for purpose intended. 6. Evidence 182-Exclusion of copy of letter, not shown to have been mailed in ordinary course, held not error. In seller's action for breach of contract to purchase sugar, exclusion of office copy of let D. R. Radovsky, H. W. Radovsky, and I. H. Simon, all of Fall River, for defendant. RUGG, C. J. This is an action of contract to recover damages for breach of contract in refusing to take and pay for sugar. The parties entered into a contract in writing whereby the plaintiff sold and the defendant bought about eighty. tons of "Brazilian washed sugar," to be shipped from Brazil. The defendant refused to accept the sugar tendered by the plaintiff in performance of the contract. The case was referred to an auditor "to hear the parties and their evidence and report his findings to the court, and his findings of fact shall be final." Motion to recommit the auditor's report was denied. The report was confirmed and judgment entered in favor of the defendant. [1] Motion to recommit the report is a proper method to raise question as to the correctness of rulings concerning the admission or exclusion of evidence where the auditor's findings of fact are final. Tripp v. Macomber, 187 Mass. 109, 72 N. E. 361; Pettey v. Benoit, 193 Mass. 233, 79 N. E. 245. In all other respects such a motion is addressed to sound judicial discretion. Randall v. Peerless Motor Car Co., 212 Mass. 352, 370, 372, 99 N. E. 221. The auditor found that the defendant was justified in rejecting the sugar on two separate and distinct grounds: (1) That the plaintiff tendered an amount of sugar in excess of the quantity ordered; and (2) that the quality of the sugar offered for delivery was not in conformity with the contract. In our view of the case, it is necessary to consider only the questions of law touching the second ground. The finding of the auditor was that the tes timony did not convince him that Brazilian washed sugar is a descriptive term, sufficient without more to identify the article sold. The recitals of evidence in the report adequately show such diversity of testimony as to warrant that conclusion and to support the further finding that: "Brazilian washed sugar is not such an article as would be known or recognized by that description merely, so as to enable one to de (146 N.E.) termine what would be a proper fulfillment of the contract without further evidence." [2] It thus appears that there was an ambiguity about the application of the words written in the contract to its subject-matter. The governing rule of law on such facts is that, for the purpose of removing or explaining an uncertainty or ambiguity of that nature, parol testimony is admissible and has a legitimate function. If previous negotiations make manifest the sense in which the terms of the contract are used, resort may be had to such negotiations as affording the best definition of the actual intention of the parties. The subject-matter of the contract may be identified by proof of whatever was before the parties while they were bargaining. If the sale were by sample, or if a sample were shown, it or a description of it would be competent upon the issue whether the article tendered corresponded with that described in the contract. Stoops v. Smith, 100 Mass. 63, 66, 1 Am. Rep. 85, 97 Am. Dec. 76; Miller v. Stevens, 100 Mass. 518, 1 Am. Rep. 139, 97 Am. Dec. 123; Pike v. Fay, 101 Mass. 134; Keller v. Webb, 125 Mass. 88, 89, 28 Am. Rep. 209; Strong v. Carver Cotton Gin Co., 197 Mass. 53, 59, 83 N. E. 328, 14 L. R. A. (N. S.) 274, 14 Ann. Cas. 1182; West End Manuf. Co. v. Warren Co., 198 Mass. 320, 324, 84 N. E. 488; Avondale Mills v. Benchley Bros., Inc., 244 Mass. 153, 157, 138 N. E. 586. [3] The auditor appears to have followed this rule both in reaching his main conclusion and in the evidence which he received. The evidence as to sample used by the broker of the plaintiff and as to his representations concerning it at the time of making the contract was rightly admitted and dealt with correctly. There is nothing to indicate that the auditor in reaching his conclusions did not give appropriate force and significance to every word used in the contract. [4] There was no error in admission of testimony offered by the defendant to the effect that the sugar tendered was unfit for the wholesale grocery business. The finding was made that the name used in the contract to describe the subject of the contract was ambiguous. If the sale be governed by the law of Massachusetts, then G. L. c. 106, § 17 (2), applies, to the effect that there was an implied warranty that the sugar should be of merchantable quality. If the sale be governed by the law of New York, then (there not appearing to have been any evidence as to the statutes of New York) the common law of that state controls, which is presumed to be the same as that of this commonwealth. [5] It is implied in every contract of sale such as that here disclosed that the goods sold shall be merchantable under the name by which they are described. If a manufacturer or dealer sells goods, which he manufactures or deals in, for a particular purpose, so that the buyer necessarily trusts to the judg ment or skill of the seller, that is an implied warranty that the goods are reasonably fit for the purpose to which they are to be applied. Hight v. Bacon, 126 Mass. 10, 12, 30 Am. Rep. 639; Leavitt v. Fiberloid Co., 196 Mass. 440, 451, 452, 82 N. E. 682, 15 L. R. A. (N. S.) 855; Interstate Grocer Co. v. Geo. W. Bentley Co., 214 Mass. 227, 231, 232, 101 N. E. 147; Friend v. Childs Dining Hall Co., 231 Mass. 65, 71, 120 N. E. 407, 5 A. L. R. 1100; Manchester Liners, Ltd., v. Rea, Ltd., [1922] 2 A. C. 74. The plaintiff was a general dealer in sugar, the defendant a wholesale grocer. The natural purpose of the purchase by the defendant was for use in the wholesale grocery business. Fitness for that purpose cannot be held on this record to have been an impertinent inquiry. of the office copy of a letter from the plaintiff to his broker. There was nothing to show that the letter was ever mailed in ordinary course. There was nothing to raise a presumption that it was received by the broker. Prudential Trust Co. v. Hayes, 247 Mass. 311, 142 N. E. 73. Moreover, the broker was [6] No error is disclosed in the exclusion called as a witness and he was not interro gated concerning the letter. The finding that the goods tendered did not conform to the requirements of the contract is not tainted with any reversible error. It is decisive of the case. It becomes unnecessary to examine the exceptions touching the other ground on which the auditor based his findings. Appeal dismissed. Exceptions overruled. MEMORANDUM DECISIONS IRWIN'S BANK et al. v. FLETCHER SAV. INGS & TRUST CO., Receiver, etc., et al. (No. 24017.) (Supreme Court of Indiana. March 10, 1925.) Appeal from Superior Court, Marion County; Solon R. Carter, Judge. For former opinion, see 145 N. E. 869. MYERS, J. The Riverside Metal Company and the other munition creditors collectively have each petitioned for a rehearing. "Fletcher" moves for a more explicit declaration as to whether their claims in the amount allowed by the trial court, or the figures, $75,000 and $20,000, in our opinion, should be taken by the receiver as the basis for payment. Each of the above petitioners seek to resubmit, and they have reargued, many of the questions presented and decided |