W. H. Pride & Co. v. W. R. Marshall & Co.

Carroll, J. On October 7, 1918, the plaintiff sold to the defendant two thousand cases of raspberry jam packed in tins, f. o. b. Bellingham, Washington. The merchandise was shipped on October 19, 1918, and an indorsed bill of lading with ten days’ draft for $16,575 was sent forward and duly presented on October 30, 1918. The jam arrived in Boston on December 14. The defendant did not accept it nor pay the draft. In January following, after the defendant had failed to sell the goods, it placed them in storage. On July 8, 1919, the plaintiff brought suit for the price of the jam together with the expenses of storage and shipment. The plaintiff on August 14 advertised the goods for resale at twelve o’clock noon, August 19, 1919, at the office of its attorney; and on the same day sent to the defendant a copy of the page of the Boston Transcript of August 14 enclosed in a letter calling attention to the column in which the advertisement appeared, and stating that the sale was to be conducted for the defendant’s account and the plaintiff would look to the defendant to pay the difference betwéen the price at which the jam was sold and the contract price, with interest and expenses. On August 15 the defendant’s attorney acknowledged the receipt of the copy of the notice of sale, and in their letter stated that they neither objected nor consented to the plaintiff’s proceedings, and, whatever course was pursued, “ we on our part shall take advantage of any available defense at the proper time.” The goods were sold as advertised to the highest of three bidders for $10,200, and the plaintiff claimed the difference between this amount and the contract price, with interest and expenses, $9,598.50. It was undisputed that in New England there was little demand for jam packed in tins, the demand being for jam packed in glass. In the middle west there was a greater demand for jam in tins than in New England. At the close of the evidence the plaintiff moved for a directed verdict for $9,598.50. The case was sent to the jury under instructians that if they adopted the plaintiff’s theory that the resale of the goods was held at a proper time and place and manner they should find for this amount. If, on the other hand, the theory was adopted that the plaintiff did not conduct, the resale as early [57] as it should have done, nor in a place or manner calculated to acquire the best price obtainable, they were to take from the plaintiff’s claim that sum in which they found the defendant was injured. They found for the plaintiff in the sum of $4,444.93, and the case was reported. It was not questioned that the title to the goods passed to the defendant when delivered to the carrier; and that the unpaid sellers retained their lien for the price, and had the right of resale. If the plaintiff conducted the sale under its lien with reasonable care and judgment, we see no reason why it is not entitled to the full amount of its claim. The defendant, however, contends that the sale was not properly held, for the reason that the jam was sold in Boston when there was a better market in the middle west, that the sale was not sufficiently advertised, and did not take place within a reasonable time after the arrival of the goods in Boston. The defendant had ample notice of the time and place of the sale. From its experience in the trade it must have known the condition of the market. It did not object to selling the goods in Boston and made no suggestion indicating that a more profitable market could be found elsewhere. It had full opportunity to protect itself, and it cannot now be heard to complain that by selling the goods in Boston the plaintiff failed to use reasonable judgment and care in the conduct of the sale. Guinzburg v. H. W. Downs Co. 165 Mass. 467. Winchester Rock & Brick Co. v. Murdough, 233 Mass. 50, 54. Even if it were essential that notice should be given by the plaintiff to the defendant of the time and place of sale, it cannot complain that the sale was not fully advertised, or, by demanding that a certified check should accompany all bids, that sufficient effort was not made to secure customers or that the sale was unfairly made. As we have said, the defendant was notified, and instead of suggesting that the request for a certified check would prevent bidders from attending the sale or that the advertisement was not adequate and that further publicity should be given, it neither consented nor objected to the course pursued by the plaintiff and claimed the right to take advantage of any available defence. It had already broken the contract by failing to pay the draft and accept the goods, and it was for its interest to see that an advantageous sale was made. It could not stand [58] by, knowing that the sale was not properly advertised, with full opportunity to assist, and then take advantage of what it now claims was an insufficient notice or advertisement. Guinzburg v. H. W. Downs Co. supra. Winchester Rock & Brick Co. v. Murdough, supra. The jam arrived in Boston on December 14, 1918, and was resold on August 19, 1919. The defendant expected to sell it to the depot quartermaster of the United States Army, and in March, 1919, urged the plaintiff to let the matter rest, as it still had hopes of so disposing of it; and as late as July, 1919, assured the plaintiff it was " working to clean up that block here now,” and hoped “ any day to be in a position to lift the draft that is here.” The merchandise was not of such a nature, as to require unusual expense in keeping it, see Putnam v. Glidden, 159 Mass. 47, and even if the defendant could show that a loss was suffered by the delay in making the resale, for this delay it was itself responsible and it is not to be attributed to the plaintiff. The sale was fully executed, and the defendant had title to the property. The correspondence shows that the defendant was asking for further time in which to dispose of the goods and requesting the forbearance of the seller. As none of the material facts were in dispute it should have been ruled that as matter of law the resale, under all the circumstances, was held within a reasonable time. See Loring v. Boston, 7 Met. 409, 413. We find nothing in the evidence to show that the sale was not fairly conducted or that the plaintiffs did not use reasonable care and judgment. The plaintiff’s motion for a directed verdict should have been allowed. Judgment is to be entered for the plaintiff in the sum of $9,598.50. So ordered.