Royal Paper Box Co. v. E. R. Apt Shoe Co.

195 N.E. 96, 290 Mass. 207, 1935 Mass. LEXIS 1071

• Court: Massachusetts Supreme Judicial Court
• Decided: March 25, 1935
• Status: Published

Opinion

Qua, J.

The plaintiff claims damages for the alleged breach by the defendant of a contract to buy from the plaintiff eight thousand cartons of paper shoe boxes.

On July 29, 1929, an interview took place at the defendant’s place of business between one Green, the plaintiff’s general manager, and E. R. Apt and Arthur Apt representing the defendant. At that interview and as a result of the negotiations which then took place Arthur Apt made out and handed to Green the following “purchase order”:

E. R. APT SHOE COMPANY Purchase order

Manchester, New Hampshire

Date, July 29-29 A N° 7827

To Royal Paper Box Co This number must appear on

5 Appleton St Boston your invoice, package and correspondence

PLEASE ENTER OUR ORDER AS FOLLOWS.

0331 Ship via neecM^ ™ Department Packing Terms 7% 10 days.

Quantity Description Price

Requirements for Balance of year to Jan 1 — 1930

Approximate estimate

4000 #8 shu-stiles label 1 25

"8 ia S3 ti 'O pq o

4000 Apt Special-* 1 23' “ 1 35

Wrapped boxes as original sample

CONDITIONS

1. Acknowledge order and state when you will ship. By..................

2. Deliver no goods without a confirmed order.

3. We reserve right to cancel, refuse or return Confirmed by Merchandise not delivered as specified. Arthur Apt

There was conflicting evidence as to what the talk was both before and at the time of the delivery of the purchase order to Green, the plaintiff’s evidence tending to show that he was assured that notwithstanding the wording of the purchase order, he was getting a contract for approximately eight thousand cases iii any event, and the defendant’s evidence tending to show that nothing was said to that effect, but that it was explained to Green that the defendant never gave an outright order, and that Green said he “merely wanted the order to insure the fact he would get the business by the end of the year whatever it amounted to on that particular box,” and that Green took the order and walked out. The next day the plaintiff wrote the defendant as follows: “We wish to acknowledge with thanks your orders No. 7827 and No. 7828. We will be able to make delivery on No. 8 Shu-Stile and Apt Specials after August 1st.”

Upon the case thus presented the judge was justified in finding that “the only contract made between the parties is by the defendant’s written order of July 29, 1929, and its acceptance by the plaintiff’s letter of July 30.” His further finding that Green “was told that he was getting an order for eight thousand cases anyway and there might be a few more than eight thousand cases” is not inconsistent with the finding first quoted. There was evidence that this was an estimate of the number likely to be needed based upon the defendant’s past experience and orders for shoes then on hand. The purchase order of July 29 and the acknowledgment of July 30 indicating its final acceptance by the plaintiff are adequate and sufficiently definite to evidence a complete and enforceable contract on the terms set forth in the purchase order. Cabot v. Winsor, 1 Allen, 546, 549. Remick v. Sandford, 118 Mass. 102. See also Thomas v. Barnes, 156 Mass. 581, 583.

The purchase order is to be construed by the court with reference to the circumstances under which it was given and accepted. Smith v. Faulkner, 12 Gray, 251, 255. We think the dominant words are “Requirements for Balance of year to Jan 1-1930” and that those words are not eon-trolled or extended by the words “Approximate estimate” and the figures which follow. The word “estimate,” in the connection in which it is here used, even though qualified by “Approximate,” cannot fairly be enlarged to denote a warranty. The words “Blanket Order” in the column headed “Quantity” lend further support to this construction. Brawley v. United States, 96 U. S. 168. National Publishing Co. v. International Paper Co. 269 Fed. Rep. 903. Cragin Products Co. v. Fitch, 6 Fed. Rep. (2d) 557. Marx v. American Malting Co. 169 Fed. Rep. 582. Mathieson Alkali Works v. Virginia Banner Coal Corp. 147 Va. 125. Tancred, Arrol & Co. v. Steel Co. of Scotland, Ltd. 15 App. Cas. 125. See Burgess Sulphite Fibre Co. v. Broomfield, 180 Mass. 283. If business conditions after July 29, 1929, resulted in reducing the defendant’s requirements for the balance of the year far below the approximate estimate, that is the misfortune of the plaintiff, and any loss to it is a consequence of the kind of agreement into which it entered. Brawley v. United States, 96 U. S. 168.

The defendant accepted only one thousand two hundred six cartons of boxes, but there was no evidence that it failed to take and to pay for as many of the boxes of the type contracted for as it required for the balance of the year to January 1, 1930. The finding for the defendant was therefore proper.

Exceptions overruled.