Ozzola v. Musolino

Crosby, J. The plaintiff in the first case seeks to recover for two shipments of cheese alleged to have been sold and delivered to the defendants. The defendants admit the receipt of the goods and that they have not paid for them, but assert that the cheese was of inferior quality and unmarketable. They agree that they realized from the sale of it an amount substantially equal to the price charged by the plaintiff. They also contend that they sold the cheese for [515] the plaintiff’s account, and that they are entitled to deduct from the amount received a commission on the sale. The plaintiff lives in Italy and the defendants’ place of business is in Boston. The negotiations between the parties were conducted wholly by correspondence, which appears in the bill of exceptions. Whether the goods were sold directly to the defendants or were shipped to them on consignment to be sold on the plaintiff’s account, was a question to be determined by the trial judge upon the evidence as disclosed by the correspondence. 1 Upon this evidence the defendants were liable as matter of law as purchasers of the goods for the contract price. Accordingly their request for a ruling could not have been given. The second action is brought for breach of an alleged contract to deliver to the plaintiffs five hundred loaves of cheese. The question whether a binding contract was entered into between the parties is, in the first case, to be determined solely by their correspondence. A careful examination of the letters which passed between the parties, all of which we do not consider it necessary to refer to, shows that no binding contract was made before August 5, 1910. On that date by letter to Ozzola, Musolino and Berger accepted the offer that Ozzola had made in previous letters. Its binding force cannot be affected by Ozzola’s letter of August 16, in which he writes that he cannot “make out” whether the contract has been concluded or not. The letter of August 5 is definite and free from ambiguity; it contains a clear and unconditional acceptance of the defendant’s offer, and there is nothing to show that the contract was afterwards waived by the plaintiffs. As the defendant in this action is liable for breach of contract in failing to deliver the goods, the plaintiffs are entitled to recover as damages the difference between the contract price and what the goods would have been worth at the time and place specified in the contract for delivery. The plaintiffs were entitled to have the judge make the rulings embodied in their second and sixth requests. If it is necessary, to protect the rights of the plaintiffs in this case, that further proceedings in the first case should be continued until the final disposition of this case, application for that purpose can be made in the Superior Court. R. L. c. 170, § 4. [516] The amount of the plaintiffs’ damages is to be determined in the Superior Court. It follows that in the first case the exceptions are overruled, and in the second case the exceptions are sustained. So ordered.