McDonald v. Needham

Bbaley, J. The evidence of the plaintiff, an apple speculator and farmer, tended to show and the trial judge could find, that in September, 1923, he had dealings with the defendant in which it was agreed that the plaintiff was to buy the defendant’s apples, the plaintiff to furnish the boxes. The plaintiff brought to the defendant’s farm about seven hundred and fifty “Fibopak boxes” which the defendant was to pack with apples. The price was fixed at $1 a bushel. When the plaintiff called about November 15 over four hundred and twenty-five of the boxes had been packed, but upon inspection the boxes were not full nor the apples properly packed. The plaintiff having observed these con [440] ditions, a discussion followed, and the plaintiff told the defendant he would not accept the apples unless they were repacked properly. The defendant refused to repack, and after further discussion the parties agreed “to call the deal off.” The situation then was, that the defendant had the boxes filled more or less with his own apples which the defendant said he would remove although he had no other containers, and wooden boxes were hard to get at that season. The plaintiff thereupon said to the defendant that he must have the boxes within two weeks or they would be of no use to him, and if the defendant did not return them within two weeks he would have to pay twenty-two cents for each box, the cost price, and the defendant replied “all right.” The plaintiff carried off the empty boxes leaving four hundred and sixty-seven boxes in the defendant’s possession. The boxes have never been returned, and, upon being asked when he would pay, the defendant said he did not know, and later wrote to the plaintiff that, having consulted counsel, he did not intend to pay. If the plaintiff wanted the boxes he could come and get them. The intention of the parties was a question of fact. Williston on Sales, (2d ed.) § 270, G. L. c. 106, § 27. And it could be found that by the words “ all right,” the defendant assented to, and accepted the terms proposed by the plaintiff, and that the proposal and acceptance was not an agreement to make a contract, nor an offer to return which never became binding as the defendant contends, but a contract of sale upon condition, whereby the plaintiff agreed to pass title, and the defendant agreed to take title, and pay for the boxes at twenty-two cents each if he did not return them within two weeks. Gutlon v. Marcus, 165 Mass. 335, 336. Burgess Sulphite & Fibre Co. v. Bromfield, 180 Mass. 283. Brodky v. George H. Morrill Co. 237 Mass. 86. Bernstein v. W. B. Manuf. Co. 238 Mass. 589, is on the facts of that case distinguishable from the case at bar. The defendant’s requests, that on all the evidence and the pleadings the finding must be for the defendant, and that on all the evidence the defendant did not expressly agree to [441] purchase the boxes or any of them, could not be given. We find no prejudicial error in the admission of evidence. The finding for the plaintiff discloses no error of law, and the order of the Appellate Division dismissing the report is Affirmed.