Keystone Grape Co. v. Hustis

Crosby, J. This is an action of contract or tort to recover the value of a carload of grapes, consigned by.the plaintiff from North East in the State, of Pennsylvania to one Snow in Boston. The declaration contains two counts, the first for conversion of the grapes and the second, in contract, to recover the amount of the shipment. The judge of the Municipal Court of the City of Boston before whom the case was tried found for the plaintiff on the first count. The case was submitted on an agreed statement of facts from which it appeared that the plaintiff agreed he would ship to Snow one carload of grapes a day dining the season of 1915, shipment to be made by order bill of lading with draft attached; that Snow kept an account with the Federal Trust Company in Boston and it was the practice for the plaintiff to send the bill of lading and a draft to that company, where Snow could obtain the bill of lading by accepting the draft; that in accordance with this prac [164] tice shipments were made, received and paid for until October 22, 1915; that on that date the shipment in question was made in a car consigned to Snow, — the initial carrier being the New York, Chicago and St. Louis Railroad Company and the last carrier the Boston and Maine Railroad, of which the defendant is receiver; that the bill of lading given the plaintiff by the initial carrier contained the"following clause: “The surrender of this original order bill of lading properly endorsed shall be required before the delivery of the property; ” and there also was stamped upon it the words: “Deliver only on surrender of original bill of lading properly endorsed.” It is also agreed that “in some manner not exactly known to the plaintiff but presumably through an error of its office boy, the order bill of lading, instead of going as usual to the bank, got into the hands of Snow. He thereupon presented to the defendant this unindorsed bill of lading for which he had paid nothing and the railroad delivered the carload of grapes; ” that afterwards Snow contended that he had a claim against the plaintiff amounting to $60 arising from a previous shipment; that this claim was disputed by the plaintiff; that Snow sent the plaintiff a check for $305.92 which was $60 less than the amount due on the carload of grapes in question; that across the end of the check was the following: “In settlement of Car. 25238;” that the plaintiff learned it had not indorsed the bill of lading and notified Snow that the check would not be accepted as payment, but did not return it, and claimed of the defendant the full value of- the shipment; that payment of the check was later stopped by Snow, and afterwards the check was returned to him by the defendant, having been previously delivered to the defendant by the plaintiff. The report also recites that “It is agreed that the court may draw such inferences of fact from the above as it thinks are warranted.” The delivery of the property by the carrier to Snow without the plaintiff’s indorsement upon the bill of lading, in direct violation of its terms, amounted to a conversion and rendered the carrier liable for the value of the property. Voghel v. New York, New Haven, & Hartford Railroad, 216 Mass. 165. St. 1910, c. 214, § 11, cl. b. The plaintiff was not required to accept the consignee’s check either in payment or partial payment of its demand [165] after the debt had become payable. Lathrop v. Page, 129 Mass. 19. Welch v. Adams, 152 Mass. 74, 85. Slade v. Mutrie, 156 Mass. 19. The plaintiff was under no legal duty to accept the check even if it could have afterwards collected the balance due notwithstanding the indorsement upon the check that it was “In settlement of Car. 25238.” Whittaker Chain Tread Co. v. Standard Auto Supply Co. 2l6 Mass. 204. The contract between the plaintiff and Snow in effect was that the latter should accept and pay drafts at the Federal Trust Company which were attached to bills of lading. The plaintiff did not consent to any other method of payment. The contract contemplated that payments should be in cash, and accordingly the plaintiff was not required to accept payment by check. A check proffered by a debtor does not constitute payment for the whole or part of a debt even if the bank upon which it is drawn is solvent; therefore the plaintiff was under no duty to accept the check in part payment. Taylor v. Wilson, 11 Met. 44. Illustrated Card & Novelty Co. v. Dolan, 208 Mass. 53. The contention of the defendant that it was the duty of the plaintiff to have accepted the check and thereby to have reduced the amount of its demand is not tenable. The principle of law upon which the defendant relies in this connection has no application to the facts in the case at bar. The rulings requested by the defendant were properly refused. The entry must be Order dismissing report affirmed.