Braley, J.
The presiding judge correctly ruled and instructed the jury that, the sale being of four cars of potatoes at an agreed price, the contract for breach of which damages are sought was indivisible. Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474, 476. Craig v. Lane, 212 Mass. 195. And the further ruling and instruction that the broker’s memorandum was sufficient to satisfy the requirements of the sales act, St. 1908, c. 237, § 4, to which the defendant excepted are free from error. The correspondence between the broker and the defendant also was properly admitted, and afforded ample proof of the broker’s authority to act for the defendant in making the bargain, the terms of which as shown by the memorandum were treated by the parties as stating the contract. Coddington v. Goddard, 16 Gray, 436, 443. Dodd v. Farlow, 11 Allen, 426. Remick v. Sandford, 118 Mass. 102, 107. Hobart v. Lmbarsky, 215 Mass. 528.
The bills of lading representing the shipments and known as “order bills of lading” ran to the order of the plaintiffs as consignees “Notify Lane & Co.” bore an abbreviated “notation,” (“O. R. — S. L. & C.”) explained in the evidence as meaning at the “Owner’s Risk, Shippers load and count,” and no contention is made that the shipments were not made or that delivery was not tendered within a reasonable time after the cars arrived. To [604] each bill of lading a draft was attached sent through a national bank at the place of shipment to a national bank at the place of destination, drawn for the " amount of potatoes, less freight.” We assume, although not specifically stated in the record, that the bills of lading to which the drafts for collection were attached were indorsed in blank by the consignee, and even if the defendant was to be notified, no directions are found allowing him to inspect each car as it arrived until he had paid the draft. Paddleford v. Lane & Co. Inc. 223 Mass. 113. St. 1908, c. 237, § 47, cl. 3. Wigton v. Bowley, 130 Mass. 252, 254. South Deerfield Onion Storage Co. v. New York, New Haven, & Hartford Railroad, 222 Mass. 535, 537.
It was however contended by the defendant that under a custom of the trade, in support of which evidence .was offered, he was not required to pay the drafts without first inspecting the potatoes to ascertain whether they were of the kind and quality purchased. This evidence was properly admitted. A local custom to allow inspection by the buyer notwithstanding the absence of such permission in the bill of lading may be shown, and if found the presumption is that the parties contracted accordingly. South Deerfield Onion Storage Co. v. New York, New Haven, & Hartford Railroad, 222 Mass. 535, 537. And the evidence introduced by the plaintiffs subject to the defendant’s exception, that a “buyer of potatoes — dealer — well known to the railroad was permitted to make any inspection of a car load of potatoes without presenting the bill of lading, where the car was consigned to him,” also was competent. Paddleford v. Lane & Co. Inc. 223 Mass. 113, 116, 117.
It moreover is well settled that the sale having been of potatoes to be delivered at a specified place, the plaintiffs, upon proof of delivery, of which there is ample evidence, and that the potatoes in all respects conformed with the contract, need not show acceptance. Nichols v. Morse, 100 Mass. 523. Rodman v. Guilford, 112 Mass. 405, 407. McLean v. Richardson, 127 Mass. 339, 345.
The defendant within twenty-four hours thereafter received notice of the arrival of all the cars, and four days after the last car arrived “took up and paid one of these drafts . . . and received the bill of lading” under the assurance as he testified of the broker, “that it was all right,” and “if there was anything about the car that was not right” the plaintiffs “would make it [605] right.” But on the defendant’s evidence the contents upon being sacked and weighed having fallen short nearly fifty-seven bushels from the five hundred and sixty bushels called for by the bill of lading, he asked by the thirteenth request for a ruling, that if the jury found this car “ contained a substantial quantity less than that called for by the invoice and bill of lading, the delivery of such car was defective, and under the terms of the contract and the circumstances of the case, such defective delivery constituted a material breach of the contract which justified the defendant in refusing to proceed further with the contract.”
The request could not have been given. The assurances of the broker need not be considered, as no express or implied authority on the part of the plaintiffs empowering him to vary the contract is shown. Record v. Littlefield, 218 Mass. 483, 486. By its terms, all the potatoes could have been shipped at the same time, and barring any delay during transportation delivery would have followed in accordance with the shipment.
If however under the bills of lading with the draft attached drawn for the “amount of potatoes, less freight” payable to the bank, therein designated at the defendant’s place of business, and of delivery, each carload under a custom among shippers and receivers, of which there was evidence, was to be paid for separately, the breach caused by the alleged shortage is severable “giving rise to a claim for compensation, but not to a right to treat the whole contract as broken.” Stewart v. Thayer, 168 Mass. 519. St. 1908, c. 237, § 45. Barlow Manuf. Co. v. Stone, 200 Mass. 158, 160. See Williston on Sales, §§ 466, 467.
The defendant furthermore having weighed and reshipped the number of bushels actually received after discovery of the shortage, could not restore the plaintiffs to their original position, and the right to rescind was lost. Miner v. Bradley, 22 Pick. 457, 458.
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Braley, J.
The presiding judge correctly ruled and instructed the jury that, the sale being of four cars of potatoes at an agreed price, the contract for breach of which damages are sought was indivisible. Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474, 476. Craig v. Lane, 212 Mass. 195. And the further ruling and instruction that the broker’s memorandum was sufficient to satisfy the requirements of the sales act, St. 1908, c. 237, § 4, to which the defendant excepted are free from error. The correspondence between the broker and the defendant also was properly admitted, and afforded ample proof of the broker’s authority to act for the defendant in making the bargain, the terms of which as shown by the memorandum were treated by the parties as stating the contract. Coddington v. Goddard, 16 Gray, 436, 443. Dodd v. Farlow, 11 Allen, 426. Remick v. Sandford, 118 Mass. 102, 107. Hobart v. Lmbarsky, 215 Mass. 528.
The bills of lading representing the shipments and known as “order bills of lading” ran to the order of the plaintiffs as consignees “Notify Lane & Co.” bore an abbreviated “notation,” (“O. R. — S. L. & C.”) explained in the evidence as meaning at the “Owner’s Risk, Shippers load and count,” and no contention is made that the shipments were not made or that delivery was not tendered within a reasonable time after the cars arrived. To [604] each bill of lading a draft was attached sent through a national bank at the place of shipment to a national bank at the place of destination, drawn for the " amount of potatoes, less freight.” We assume, although not specifically stated in the record, that the bills of lading to which the drafts for collection were attached were indorsed in blank by the consignee, and even if the defendant was to be notified, no directions are found allowing him to inspect each car as it arrived until he had paid the draft. Paddleford v. Lane & Co. Inc. 223 Mass. 113. St. 1908, c. 237, § 47, cl. 3. Wigton v. Bowley, 130 Mass. 252, 254. South Deerfield Onion Storage Co. v. New York, New Haven, & Hartford Railroad, 222 Mass. 535, 537.
It was however contended by the defendant that under a custom of the trade, in support of which evidence .was offered, he was not required to pay the drafts without first inspecting the potatoes to ascertain whether they were of the kind and quality purchased. This evidence was properly admitted. A local custom to allow inspection by the buyer notwithstanding the absence of such permission in the bill of lading may be shown, and if found the presumption is that the parties contracted accordingly. South Deerfield Onion Storage Co. v. New York, New Haven, & Hartford Railroad, 222 Mass. 535, 537. And the evidence introduced by the plaintiffs subject to the defendant’s exception, that a “buyer of potatoes — dealer — well known to the railroad was permitted to make any inspection of a car load of potatoes without presenting the bill of lading, where the car was consigned to him,” also was competent. Paddleford v. Lane & Co. Inc. 223 Mass. 113, 116, 117.
It moreover is well settled that the sale having been of potatoes to be delivered at a specified place, the plaintiffs, upon proof of delivery, of which there is ample evidence, and that the potatoes in all respects conformed with the contract, need not show acceptance. Nichols v. Morse, 100 Mass. 523. Rodman v. Guilford, 112 Mass. 405, 407. McLean v. Richardson, 127 Mass. 339, 345.
The defendant within twenty-four hours thereafter received notice of the arrival of all the cars, and four days after the last car arrived “took up and paid one of these drafts . . . and received the bill of lading” under the assurance as he testified of the broker, “that it was all right,” and “if there was anything about the car that was not right” the plaintiffs “would make it [605] right.” But on the defendant’s evidence the contents upon being sacked and weighed having fallen short nearly fifty-seven bushels from the five hundred and sixty bushels called for by the bill of lading, he asked by the thirteenth request for a ruling, that if the jury found this car “ contained a substantial quantity less than that called for by the invoice and bill of lading, the delivery of such car was defective, and under the terms of the contract and the circumstances of the case, such defective delivery constituted a material breach of the contract which justified the defendant in refusing to proceed further with the contract.”
The request could not have been given. The assurances of the broker need not be considered, as no express or implied authority on the part of the plaintiffs empowering him to vary the contract is shown. Record v. Littlefield, 218 Mass. 483, 486. By its terms, all the potatoes could have been shipped at the same time, and barring any delay during transportation delivery would have followed in accordance with the shipment.
If however under the bills of lading with the draft attached drawn for the “amount of potatoes, less freight” payable to the bank, therein designated at the defendant’s place of business, and of delivery, each carload under a custom among shippers and receivers, of which there was evidence, was to be paid for separately, the breach caused by the alleged shortage is severable “giving rise to a claim for compensation, but not to a right to treat the whole contract as broken.” Stewart v. Thayer, 168 Mass. 519. St. 1908, c. 237, § 45. Barlow Manuf. Co. v. Stone, 200 Mass. 158, 160. See Williston on Sales, §§ 466, 467.
The defendant furthermore having weighed and reshipped the number of bushels actually received after discovery of the shortage, could not restore the plaintiffs to their original position, and the right to rescind was lost. Miner v. Bradley, 22 Pick. 457, 458.
The fourteenth and fifteenth requests while not given in terms are well covered by the instructions. The judge after stating the custom appearing in evidence, that when “one car of a lot is short” the seller may be called on by the buyer to secure him against loss from a possible shortage in other cars comprised in the same contract, correctly instructed the jury in accordance with the proof, that, if the “custom was that when there was [606] shortage the parties would get together and come to some agreement, and if that is where the custom stops . . . then that would not go far enough to say that the defendant should be excused from performing his part of the contract. But if the custom went further and said that, failing to make such an agreement, the defendant would then have a right to give up his contract as to the rest of it, then that would present a question of fact in this case as to whether this defendant was justified in demanding security, and whether security was offered to him, and whether he refused it or not.” A. J. Tower Co. v. Southern Pacific Co. 184 Mass. 472, 475, 476; S. C. 195 Mass. 157. And “unless the defendant is excused from receiving the three cars by reason of some custom which is invoked in this case, then the plaintiff would be entitled to recover whatever damage he suffer by reason of the failure of the defendant to perform his part of the contract.” See National Contracting Co. v. Vulcanite Portland Cement Co. 192 Mass. 247, 255.
We have considered all the exceptions in so far as argued, and, finding no ground for reversal, the order must be
Exceptions overruled.