Sale, Delivery, Repudiation. Bill of Lading. Contract, Performance and breach. Damages, For breach by purchaser of contract of sale.
If, at the trial of an action in the Municipal Court of the City of Boston for the price of goods alleged to have been sold and delivered by the plaintiff to the defendant, it appears that a memorandum of the sale directed delivery of the goods to a carrier in Boston, freight to be paid by the defendant, and the plaintiff so delivered them, addressed to the defendant as consignee, and received from the carrier a non-negotiable bill of lading naming the defendant as consignee, which the plaintiff retained, giving no notice to the defendant respecting it; and if the bill of lading is not introduced in evidence and the testimony as to the ability of the defendant to procure the goods without it is conflicting and the judge makes no express finding respecting it and its effect on delivery to the defendant and finds for the plaintiff, it must be assumed, upon an appeal by the plaintiff from an order of the Appellate Division vacating the finding and ordering judgment for the defendant, that the mere failure of the plaintiff to forward the non-negotiable bill of lading to the defendant had no effect upon the defendant's right to demand delivery of the goods.
As a general rule, a non-negotiable contract of shipment is discharged by delivery of the goods to the consignee without the surrender or production of the bill of lading.
In the action above described, it was held that the general finding by the trial judge for the plaintiff imported a finding that the goods were delivered to the defendant, and that such a finding was warranted by the evidence.
The mere facts that, in the action above described, it also appeared that, after the plaintiff delivered the goods to the carrier, consigned to the defendant, he notified the carrier not to deliver them to the defendant and wrote to the defendant in an endeavor to get him to pay the purchase price before it was due, were held not to be of decisive consequence, and to be ineffectual to restore to the plaintiff title to the goods which had vested in the defendant upon delivery to the carrier.
Where, at the trial of an action for a breach of a contract of sale by a purchaser of goods sold by an oral contract of sale, it appears that, in the making of a sales slip by the vendor, which was handed to the purchaser, a clerical error occurred in stating the price too low, and that the purchaser seized upon such clerical error and persistently declared to the vendor that the slip as made expressed the true terms of the contract, such conduct on his part may be found to constitute a repudiation of the contract.
Utter denial of an essential term of a contract may be found to be a disavowal of the contract.
In an action by a vendor of goods against a purchaser for damages resulting from a repudiation of the sale, it is proper to assess as damages the amount, if any, by which the contract price exceeds the market price of the goods at the time and place fixed by the contract for performance.
In the action described above it appeared that the contract of sale was made on a December 29, and delivery was to be at some time before January 8 following, and the plaintiff's evidence tended to show that there was no general market for the goods at the time and place agreed upon for delivery, but that, at about that time, the price had advanced so that the goods were from one quarter to three quarters of a cent per pound greater than the contract price. The evidence of the defendant tended to show that there was a market price for the goods at the time and place agreed upon for delivery, that that price never was greater than one cent less than the contract price and during the months preceding the time of the making of the contract varied from one and one half of a cent to one cent below the contract price. The judge found that at the time and place agreed upon for delivery the market value of the goods was sixty-five one hundredths of one cent less than the contract price. Held, that such a finding, while founded upon slight evidence, could not be said to be unwarranted.
RUGG, C. J.
These are two actions of contracts based upon sales of goods. For convenience we treat each case separately.
First Case.
This is an action to recover for goods sold and delivered. On December 29, 1916, the defendant at the plaintiffs' place of business in Boston made an agreement to buy of the plaintiffs "ten (10) bales of oil mill motes at 4 1/4 c. per pound, F.O.B. Boston, terms 1%, 10 net 30 days, to be shipped by the N.Y., N.H. H. R. R. — to be shipped at once to New York." There was no dispute between the parties as to the terms of this agreement. These goods were shipped to the defendant by the carrier named on December 30, 1916, and a non-negotiable bill of lading was issued on that date, the defendant being named as consignee. This bill of lading was not forwarded to the defendant, but was retained by the plaintiffs, who sent no notice to the defendant respecting it. Owing to other differences between the parties, the plaintiffs on January 11, 1917, and again four days later, wrote in substance to the defendant that they would not deliver to him the oil mill motes unless he accepted and paid demand or sight draft less one per cent discount. The plaintiffs also notified the carrier at Boston, on January 9, not to deliver the mill motes to the defendant. The defendant on January 11, 1917, brought an action in New York City for breach of contract and there attached goods of the plaintiffs alleged to be in the possession of the New York, New Haven, and Hartford Railroad.
The bill of lading is not printed in the record. The plaintiffs testified that the "defendant could get the goods on arrival without bill of lading." The defendant testified that without the "bill of lading, as matters stood, he could not get possession of the mill motes." The court refused to grant the defendant's sixth request for ruling, which amongst other matters contained a statement of fact to the effect that the defendant could not obtain the possession of the motes without the bill of lading. There was no other evidence and no express finding respecting the bill of lading and its effect on delivery to the defendant in New York. Under the circumstances it must be assumed that mere failure of the plaintiffs to forward it to the defendant had no effect on his right to demand delivery of the goods in New York. See, in this connection, In Matter of Bills of Lading, 14 I.C.C. Rep. 346, and New York Central Hudson River Railroad v. York Whitney Co. 230 Mass. 206, 213, 217. It is the general rule that a non-negotiable contract of shipment by a common carrier is discharged by delivery to the consignee without the surrender or production of the bill of lading. The fact that one is consignee is evidence of ownership. Brown v. Floersheim Mercantile Co. 206 Mass. 373, 375. Rosenbush v. Bernheimer, 211 Mass. 146, 149, 151.
The contract between the parties was plain. The ordinary rule is that, in case of sales of goods to be shipped by the vendor from one place to another, delivery to the carrier is delivery to the buyer unless there is special agreement to the contrary. Fechteler v. Whittemore, 205 Mass. 6, 11. Twitchell-Champlin Co. v. Radovsky, 207 Mass. 72, 75. Levy v. Radkay, 233 Mass. 29, Sales act, St. 1908, c. 237, §§ 19 and 46. Delivery of the goods to the carrier together with the taking of a non-negotiable bill of lading in the name of the defendant was strong proof of intention by the plaintiffs to transfer the title to the defendant. Wigton v. Bowley, 130 Mass. 252. The general finding of the trial judge in favor of the plaintiffs imported a finding in their favor on the point of delivery.
The attempt of the plaintiffs by notice to the carrier not to deliver to the defendant was not of decisive consequence. The goods theretofore had been delivered to the carrier; it held as bailee for the defendant to whom the title had passed. The letters of the plaintiffs endeavoring to get the defendant to pay before the due date of the contract were ineffectual to restore to them a title which already had vested in the defendant. These subsequent acts of the plaintiffs had no effect upon substantial elements of the contract which were already executed. R. H. White Co. v. Jerome H. Remick Co. 198 Mass. 41, 48. Daley v. People's Building, Loan Savings Association, 178 Mass. 13, 18. The finding of fact of the trial judge in favor of the plaintiffs was warranted by the evidence. No error of law is disclosed on the record.
The finding of the judge for the plaintiffs is to stand and judgment is to be entered accordingly.
So ordered.
Second Case.
This is an action to recover damages for breach of a contract by the defendant to buy of the plaintiffs a car of willowed picker at five and three quarters cents per pound. The negotiations were oral. When the bargain was struck, an unsigned memorandum dictated by one of the plaintiffs was written, in which the price was stated as four and three quarters cents per pound. The judge found on conflicting evidence that this was a mistake and that the price agreed upon was five and three quarters cents per pound, that the defendant repudiated the sale, and that until such repudiation the plaintiffs were ready and willing to perform the contract, and that thereafter the plaintiffs resumed control of the property. The evidence disclosed by the record plainly warranted the finding that the terms of the agreement actually made were clear, that the defendant seized upon the clerical error in the sales slip or memorandum and persistently declared that that expressed the terms of the contract. His conduct in this connection constituted a repudiation of the only contract made. Utter denial of an essential term of a contract may be equivalent to a disavowal of the contract. Moreover, the defendant refused seasonably to give shipping instructions. Mullaly v. Austin, 97 Mass. 30. King v. Faist, 161 Mass. 449. Kehlor Flour Mills Co. v. Linden, 230 Mass. 119, 130.
The correct rule of law was followed in assessing damages. It was the difference between the contract price and the fair market price at the time and place fixed by the contract for performance. Barrie v. Quinby, 206 Mass. 259, 268. The evidence, while slight upon this point, cannot be pronounced insufficient to warrant the finding. Houghton v. Furbush, 185 Mass. 251. Maynard v. Royal Worcester Corset Co. 200 Mass. 1, 8.
Order dismissing report affirmed.