Houdlette v. Dewey

Braley, J. The declaration as amended contained two counts the first declaring for the balance of an account due under the contract, the second, on an account annexed in which the balance was itemized. At the trial, the other items having been either admitted, or not seriously contested, the controversy seems finally to have been narrowed to the charge for transportation, and the exception to the refusal to rule, that under the [421] contract the plaintiffs could not recover therefor, presents the only question to be decided. The plaintiffs’ letter to the defendant, with his acceptance, constituted the contract, and in view of the findings of the judge, which were supported by the evidence, that it had not been varied by their subsequent telegrams, letters and interviews, their respective rights rest upon its construction. It may be gathered from the exceptions, which are extremely meagre in regard to any clear description of the parties or their situation at the time, that the defendant, who was an architect residing in another State, intended to use the steel beams, after they had been properly fitted in the erection of a building either owned by him or being built under his supervision. The plaintiffs engaged to import the beams and deliver them to the New England Structural Company, by whom under a separate contract with the defendant they were to be wrought into the desired shape. But, in fact, the works of the New England Structural Company were at Everett, and, as that company refused to accept delivery of the beams at the wharf, the plaintiffs paid for transportation to the works for all the shipments, and demanded reimbursement from the defendant. The defendant’s agreement with the company does not appear, nor is it important, for, upon recurrence to the contract, it will be seen that the plaintiffs became bound to deliver only “at Boston,” the place designated by the buyer, and when the beams were landed on the wharf and the company had been notified, the plaintiffs had performed their contract, and the title then passed to the defendant. Chickering v. Fowler, 4 Pick. 371. Lucas v. Nichols, 5 Gray, 309. Nichols v. Morse, 100 Mass. 523. Peck v. Waters, 104 Mass. 345. National Bank v. Dayton, 102 U. S. 59. Smith v. Chance, 2 B. & A. 753, 755. In payment for the shipments as they arrived, and upon making delivery, sight drafts were to be drawn upon the defendant against the invoices. But as the company would not receipt unless the beams had been actually received, after about two thirds had arrived and were on the wharf, the plaintiffs telegraphed the defendant of the refusal and asked for instructions. If the telegram, his letter in reply, and the telegram and the letter sent to him the following day, to which no answer was [422] received, are read in connection with his oral testimony in reply to questions put by the judge, there was evidence which warranted the judge in finding that the defendant understood that the plaintiffs were to transport the beams to the mill of the company for his benefit and at his expense. The plaintiffs, therefore, having made the necessary outlay, were properly found entitled to recover the amount upon the account annexed. Massachusetts Mutual Ins. Co. v. Green, 185 Mass. 306. Foote v. Cotting, 195 Mass. 55, 62, 63. Exceptions overruled.