Mann v. Laws

Devens, J. The question presented by the report in this case arises upon the declaration and the construction of the correspondence which constituted the contract between the parties, and brings before us only the inquiry whether the defendants were bound, by any 'direction of the plaintiffs in accepting the consignment of their goods, not to sell them for less 'than the invoice prices contained in the plaintiffs’ bills. The declaration contained no averment that the defendants had not acted' faithfully and judiciously in the sale made by them. The plaintiffs did not desire to amend their pleadings, and while certain evidence was offered and rejected by the court as immaterial to the issue raised, no exception appears to have been taken to its exclusion. We are of opinion that the court correctly ruled that the defendants were not limited in their sales to the invoice prices. While the plaintiffs had a right to fix definitely the prices of their goods, and to direct positively that none should be sold for less than they thus fixed, the giving of prices merely in the invoice which accompanied the shipment cannot be considered such a direction. In their letter requesting the consignment, of August 14,1872, while the defendants desire the plaintiffs to invoice the goods as low as they can, they inform the plaintiffs what the 297 charges are to be, what they will do as to payment of return freight if satisfactory prices cannot be obtained, and that they will be responsible for any neglect of duty or of the orders which the plaintiffs may give. In the reply of the plaintiffs, of August 19, 1872, which accompanies the shipment of goods, they state that they have invoiced the goods at the lowest selling prices, and that the invoice inclosed “ will be duplicated if the prices obtained warrant.” The correspondence on both sides, and especially the promise of the plaintiffs to duplicate “ the small shipment ” actually sent, “ if prices obtained warrant,” indicate that the goods were sent in order to make an experiment upon the market, and that the invoice prices were for the information, and to some extent perhaps for the guidance of the consignees; but there is no direction to them to hold the goods if these prices cannot be obtained. Upon a declaration, therefore, which alleges no misconduct on the part of the defendants, but simply a violation of an order not to sell at less than the invoice prices, the plaintiffs cannot recover. While the contract between the parties is to be determined by the letters of August 14 and August 19,1872, as tending to show that the construction given by the court is the natural one, it is to be observed that the construction which the plaintiffs originally gave themselves was the same. This is sufficiently shown by their letter of September 11,1872, in which, while they say that the prices are not satisfactory, they make no claim- that any order has been violated by selling at less than the invoice prices, but object only to the commissions, which they think higher than have been agreed to. Judgment on the verdict.