Burke v. Atlantic Chemical Co.

Jenney, J. On August 18, 1917, the plaintiffs wrote to the defendant concerning some black gunpowder which was then controlled by them. In their letter they proposed to deliver the gunpowder to the defendant, which was to recover the nitrate of potash contained therein and then sell it. The letter continued: “When the same is sold you [(the defendant] are to pay us [(the plaintiffs] eighteen (18) cents per pound as our allowance for the powder and divide the net profits of the shipments above said eighteen (18) cents per pound allowance plus the actual expenses of treatment, into two equal parts, one of which shall belong to you and the other to us three. The net profits shall be ascertained by deducting from the gross receipts only said eighteen [68] (18) cents per pound plus the actual expenditures (not including any overhead charges) and these actual expenditures you agree shall not exceed one (1) cent per pound for the powder treated; and in case the expenditures, exclusive of cost of equipment, shall exceed that amount, you agree to assume any excess.” The defendants by letter accepted the terms so specified. The auditor found that the plaintiffs delivered one hundred and ninety-eight thousand seven hundred and ninety-five pounds of gunpowder to the defendant and that they fulfilled all the requirements of the contract. His report negatived the defendant’s claim of misrepresentation on the part of the plaintiffs. The entire proceeds of the sale of the nitrate of potash extracted from the gunpowder amounted to $18,077.19. This was not enough to pay the plaintiffs for the powder. They argue that the agreement contained an unconditional promise to pay for the powder. The defendant contends that the contract should not be construed as in effect making it liable as a purchaser of the powder; but it is immaterial that the title to the powder may not have passed, or that the defendant assumed there would be enough money to pay the plaintiffs the value of the powder and also to yield a profit to itself. The contract is clear. The nitrate of potash was to be recovered and sold; the promise was absolute to pay to the plaintiffs when it was sold the sum agreed as the value of the powder-. There is nothing to indicate that the amount payable was to be limited by the money actually received or that the obligation was to be discharged only by recourse to a fund created by the sale of the nitrate. The parties did not provide for such a contingency and no such term can be read into the contract. The judge, subject to the plaintiffs’ exception, ordered the jury to find a verdict for the defendant upon the pleadings and the evidence. This instruction was based upon an erroneous construction of the contract and this exception must be sustained. One other question remains. One of the plaintiffs was called as a witness and was asked as to a conversation between him and officers of the defendant for the purpose of showing that the defendant’s president expressly said that when the nitrate of potash was sold, the defendant would pay the plaintiff eighteen cents for each pound of powder delivered to the defendant. This question was properly excluded. The written contract disclosed by [69] the letters was unambiguous and the evidence was inadmissible to vary its terms or affect its construction. The exception to the rejection of this evidence must be overruled. Waldstein v. Dooskin, 220 Mass. 232. Benford Mfg. Co. v. Standard Tire & Rubber Co. 235 Mass. 380. Cass v. Lord, 236 Mass. 430. Exceptions sustained.