Sale. Practice, Civil, Exceptions, Judge's charge. Evidence, Of contract, Extrinsic affecting writings. Contract, What constitutes, Construction. Damages, For breach of contract.
If, at the trial of an action by a purchaser against a seller for failure to deliver burlap in accordance with a contract of sale, it appears that the contract was contained in a letter from the defendant to the plaintiff, quoting terms, a reply of the plaintiff accepting the terms quoted and a sales note signed by the defendant and enclosed in a letter which stated that it was subject to the conditions mentioned in the defendant's previous letter, and the trial judge erroneously rules that the sales note contained the entire contract between the parties and excluded the letters, an exception to such ruling will not be sustained unless, on the whole evidence, it appears that substantial rights of the defendant were impaired.
In the action above described, it appeared that, in the letter of the defendant which the judge excluded, prices were quoted "subject to change of market." The sales note set as the selling price the same price and terms offered in the letter but did not state that the price was "subject to change of market." Held, that the quoted phrase in the defendant's letter referred to a variance of the price during the pendency of the offer, and did not affect the price after it had been fixed by the sales note, so that no harm in this respect resulted to the defendant from exclusion of the letter.
The letter of the defendant, above described, also contained a provision, not in the sales note, that "the delivery would have to be strictly subject to the arrival of our own importations." The defendant first relied on this provision in defence by an amended answer filed at the time of the trial of the action. Previous to that time, he had contended that no contract was made with the plaintiff. It appeared that the defendant never attempted to place an order for importation of burlap to fill the plaintiff's order, that it would have been impossible to procure importations to fulfil the requirements of the sale as to delivery unless the orders had been placed long before the contract with the plaintiff was made, and that the defendant did not rely on its own importations to fulfil the plaintiff's orders. Held, that exclusion of the letter did not harm the defendant in this respect.
In the letter of the defendant above described, there also was a statement that delivery was subject to marine disasters. It appeared that delivery from the defendant to the plaintiff was to be "f. o. b." at the city where the defendant did business, and that certain "marine disasters" respecting shipments to the defendant did not affect any importation ordered by the defendant in contemplation of the plaintiff's order. Held, that the defendant was not harmed by the exclusion of the letter in this respect.
In the charge to the jury in the action above described, the judge stated, "There is no question about this contract, but what it called for two bales on the first of each month, commencing with December." It appeared that the sales note stated, "Delivery 2 bales per month commencing December 1st," and this construction was recognized by a letter of the defendant referring to "those two bales, which I understand, are due you February 1st." Held, that the defendant was not harmed by the statement of fact in the charge.
At the trial of the action above described, it appeared that, in consequence of the failure of the defendant to perform the contract of sale, the plaintiff was compelled to buy elsewhere, that he had difficulty in meeting his requirements and that his mill was closed in January for that reason, that in placing replacement orders he secured minimum prices by getting three different bids on each purchase and kept the defendant informed of his needs and efforts. It did not appear that the plaintiff was able to procure burlap on the first of each month or that he could have bought at a lower price than he did. The trial judge refused to rule that "The plaintiff made no replacement purchase on a date when the goods ought to have been delivered," and that "The plaintiff has offered no sufficient evidence of its damage." Held, that, on the issue of damages, the defendant failed to show that his substantial rights were affected injuriously.
De COURCY, J.
The Wonalancet Company, of Nashua, New Hampshire, on October 25, 1915, sent an order for fifteen bales of burlap to the defendant corporation at its Boston office. On October 29 the defendant's manager wrote to the plaintiff, enclosing a sales note in confirmation of the order. The defendant failed to send the goods, notwithstanding repeated demands; and the plaintiff was obliged to buy elsewhere, at an increased price. In this action for failure to deliver the burlap the plaintiff obtained a verdict.
1. By requests for rulings and exceptions to portions of the charge, the defendant raises the question whether the judge erred in ruling that the entire contract was embodied in the sales note. On this point we assume, in favor of the defendant, that its letter of October 23 should also be considered, in determining what were the terms of the contract; because the sales note was sent "subject to the conditions mentioned in our letter quoting the goods to you."
The substantial rights of the defendant were not impaired, however, by the judge's erroneous construction. The clause in the letter, "these prices are subject to change of market," plainly related to the offering price, and did not affect the price that later was fixed by the contract. The only other provision relied on by the defendant, which is set out in the letter and not in the sales note, is that "the delivery would have to be strictly subject to the arrival of our own importations." This first appears as a defence in the amended answer, filed at the time of the trial; up to which time the contention of the defendant was that it never made the alleged contract. On the facts shown it is immaterial that the judge disregarded this clause. The defendant never attempted to place an order for burlap from Calcutta in execution of the plaintiff's contract; and it would have been impossible to obtain importations for delivery on December 1 unless they had been ordered long before this contract was made. That the defendant in fact did not rely upon its own importations is clear from the testimony of Mrs. Collins, wife of the president of the defendant corporation. She had charge of the "burlap end" of the business; and testified in substance that the company had an adequate supply on hand for delivery to the plaintiff, and would have covered this sale if the Boston manager had informed them of the existence of the contract.
2. For the same reasons, the clause in the sales note, "delivery subject to . . . marine disasters" has no application, on the facts disclosed. The defendant's order of November 15, for the shipment from Calcutta of twenty-five bales, was not made in contemplation of this contract; and the burlap did not reach Boston until sometime in March, 1916. The plaintiff's rights were not affected by the fire on board the "City of Naples," which apparently was carrying jute that the defendant expected to share.
3. There was no error in the statement in the charge, that according to the contract two bales were to be delivered on the first day of December. The express stipulation in the sales note was, "Delivery 2 bales per month commencing December 1st." And this construction was recognized by the reference to "those two bales, which I understand, are due you February 1st," in the defendant's letter of January 29, 1916.
4. As already stated, in consequence of the defendant's failure to make deliveries in accordance with its contract, the plaintiff was compelled to buy elsewhere. It is apparent from the correspondence that it was difficult to obtain burlap, owing to war conditions. In January the plaintiff's mill was closed because of inability to secure this material. In placing replacement orders the plaintiff secured minimum prices by getting three different bids on each purchase; and it kept the defendant informed of its needs and efforts. It does not appear that the plaintiff was able to procure burlap on the first day of each month, or that it could have bought at a lower price than it did. From statements of testimony in the judge's charge it is apparent that the jury had the benefit of quotations which are only summarized in the exceptions. In short, on the issue of damages, the defendant fails to show that its substantial rights were injuriously affected.
5. Further detailed discussion of the exceptions seems unnecessary. We have examined all of them, and find no reversible error in the conduct of the trial.
Exceptions overruled.