Schramm v. Boston Sugar Refining Co.

Field, J. The jury have found, under instructions to which no exception was taken, that the sugars delivered were Maroim brown sugars, within the meaning of the contract, and that there was no usage by which the defendant was entitled to reject the sugars because they fell below the test, which the contract made the' basis of settlement, by more than two or three degrees of the polariscope. It is plain that the sugars were shipped by the vessel intended by the parties to the contract; that this vessel might well have [215] been called a Swedish schooner; that the defendant did not refuse to receive the sugars because the vessel carried some square sails; and that this fact was immaterial. The defendant contends that there was evidence of a false representation of fact made by the agent of the plaintiffs whereby the defendant’s agent was induced to make the contract. If any such representation was made, it was made by Verplanck, the broker, and it is said that there was evidence that a representation was made by him that the sugars were “ of eighty-four degrees test.” “ The defendant’s counsel admitted to the court that he had no evidence to show that Verplanck or Smith and Schipper knew at the time of the sale that the quality of the cargo was not as defendant claimed it was stated by Verplanck.” There was no evidence that the plaintiffs knew that Verplanck ever made any such representation, or ever authorized him to make any such representation. The contention is, that if Verplanck, as agent of the plaintiffs, made a positive representation of fact, although he was not authorized by them to make it, and they did not know that he had made it, and although he believed it to be true, yet, if the defendant’s agent relied upon it in making the contract, the defendant could rescind the contract, if the representation was actually false. If we assume that this is the law, we are yet of opinion that the evidence recited in the exceptions would not have warranted the jury in finding that Verplanck made any statement which was, or was understood by the defendant’s agent to be, a positive representation of an existing fact relating to an ascertained lot of sugars. There was no evidence that there was an ascertained lot of sugars in existence which Verplanck offered to sell, or that the defendant’s agent who made the contract understood that Verplanck represented that there was such a lot of sugars which would test exactly eighty-four degrees. It appears that the defendant’s agent clearly understood that the sugars when selected and put on board would vary somewhat from this test, and no contract was made limiting the extent of this variation, and no representation that it would not exceed any definite limit. So far as appears, Verplanck showed to the defendant's agent all the information he had concerning the sugars, and there is no evidence that the defendant’s agent understood that Verplanck had any per [216] sonal knowledge of the quality of the sugars, or that he made any representation of the quality as of his own knowledge. If the plaintiffs made any representation, it was by the telegram, and that was not false. The contract contains no warranty of the quality of the sugars, and none could be shown by the oral testimony to add to or vary the terms of the written contract. Taking the most favorable view of the whole evidence that can be taken for the defendant, it amounts to this: that in December, 1885, Verplanck, as agent of the plaintiffs,-offered for sale a cargo of about four hundred tons, more or less, of Maroim brown sugars, to be shipped by the Swedish schooner Sylphide in the following January or February, and that he in good faith said that they would, or that he thought they would, test about eighty-four degrees; and that, induced by this, the defendant’s agent made the written contract in which eighty-four degrees was taken as the “ settlement basis,” and the price was agreed upon, with stipulated variations up or down if the sugars tested more or less than this. Contracts of sale of articles thereafter to be selected cannot be rescinded because before the making of the contracts there may have been an honest expression of opinion, or an honest statement of fact not purporting to be as of knowledge, that when the articles are selected in conformity with the contracts they will be of a better quality than they prove to be. We are not aware that in this Commonwealth there is in this respect any different rule in equity from that which obtains at law. King v. Eagle Mills, 10 Allen, 548. Pike v. Fay, 101 Mass. 134. Litchfield v. Hutchinson, 117 Mass. 195. Ormrod v. Kuth, 14 M. & W. 651. The measure of damages was the difference between the contract price and the market value at the time and place of delivery. If the evidence that the market price of sugars had fallen between the date of the contract and the time when the cargo arrived and was landed was admitted for the purpose of proving this market value, it may have been competent in connection with other evidence; the fact that the evidence was rendered unnecessary by the concession of the defendant does not make the admission of it a ground for a new trial. Priest v. Groton, 103 Mass. 530, 540. Jennings v. Whitehead & Atherton Machine Co. 138 Mass. 594. It does not appear that this evi [217] dence was admitted for any other purpose, and the objection taken is general. We cannot say that evidence of the amount of the fall in price of sugars generally was not some evidence of the amount of the fall in price of this particular kind of sugars. The defendant contends that it was prejudiced by the admission of this evidence, and .that the plaintiffs’ counsel might argue from it that the defendant refused to receive the sugars because they had fallen in price, and not because they did not test eighty-four degrees. The exceptions do not state that any such argument was made; but if it was, we cannot say that it was not legitimate, or that it could not as well have been made upon the concession of the defendant as upon the evidence. jExceptions overruled.