Braley, J.
This is an action of contract to recover damages for the failure of the defendant to accept and pay for certain horse hides, described in the record as “horse butts,” alleged to have been purchased of the plaintiff. The exceptions to the ad[468] mission of evidence, not having been argued, may be treated as waived, leaving for decision the questions, whether any contract between the parties was proved, and if a contract was consummated, whether it is unenforceable because of the statute of frauds, which is duly pleaded.
The case was tried without a jury, and on the evidence the judge was warranted in making the following findings. The plaintiff, doing business in Chicago, Illinois, as a dealer in horse hides, was represented in Boston by one Needham with whom the defendant, a dealer in leather in Boston, agreed to buy of the plaintiff “one thousand butts, varying in price, according to certain standards,” the total amount being $4,105. The time when the defendant’s order was accepted, and when the agreement was finally concluded, “can be fixed as April 17, 1920,” which was the date of the plaintiff’s letter to Needham, “informing him that they would ship the thousand horse butts to the place designated by the defendant.” The butts were delivered to the carrier at Chicago “on either May 17 or 18; it was difficult to determine which, from the bill of lading.” While the butts were in transit the defendant notified the plaintiff by telegram, that, not having been promptly shipped, “he refused to receive them.” The butts “which were sent cash on delivery” arrived on June 1 and the defendant in accordance with his telegram declined to accept, and they were returned to the plaintiff, which at the time of the trial held possession, exercising the rights of an owner.
We assume that the contract was made here and the legal rights of the parties are governed by our laws. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. P. Garvan, Inc. v. New York Central & Hudson River Railroad, 210 Mass. 275, 280. See Kline v. Baker, 99 Mass. 253.
It appears that no time for performance was fixed by the parties, and the plaintiff accordingly had the burden of proving that it tendered delivery within a reasonable time. It was a question of fact on all the evidence, and the finding that the plaintiff was not in default in failing to ship earlier, not having been unwarranted, cannot be set aside as matter of law. Sales act, St. 1908, c. 237, § 43, cl. 4. American Malting Co. v. Souther Brewing Co. supra. Nickerson v. Bridges, 216 Mass. [469]*469416, 420. The contract was completed when transfer of possession was tendered, and the price then became due and payable. Sales act, §§ 3, 19, Rule 5. Haskins v. Warren, 115 Mass. 514, 533. The defendant’s second request that there is no evidence of any contract as alleged in the declaration, and the fifth request, there is no evidence that the plaintiff performed its part of the contract were refused rightly.
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Braley, J.
This is an action of contract to recover damages for the failure of the defendant to accept and pay for certain horse hides, described in the record as “horse butts,” alleged to have been purchased of the plaintiff. The exceptions to the ad[468] mission of evidence, not having been argued, may be treated as waived, leaving for decision the questions, whether any contract between the parties was proved, and if a contract was consummated, whether it is unenforceable because of the statute of frauds, which is duly pleaded.
The case was tried without a jury, and on the evidence the judge was warranted in making the following findings. The plaintiff, doing business in Chicago, Illinois, as a dealer in horse hides, was represented in Boston by one Needham with whom the defendant, a dealer in leather in Boston, agreed to buy of the plaintiff “one thousand butts, varying in price, according to certain standards,” the total amount being $4,105. The time when the defendant’s order was accepted, and when the agreement was finally concluded, “can be fixed as April 17, 1920,” which was the date of the plaintiff’s letter to Needham, “informing him that they would ship the thousand horse butts to the place designated by the defendant.” The butts were delivered to the carrier at Chicago “on either May 17 or 18; it was difficult to determine which, from the bill of lading.” While the butts were in transit the defendant notified the plaintiff by telegram, that, not having been promptly shipped, “he refused to receive them.” The butts “which were sent cash on delivery” arrived on June 1 and the defendant in accordance with his telegram declined to accept, and they were returned to the plaintiff, which at the time of the trial held possession, exercising the rights of an owner.
We assume that the contract was made here and the legal rights of the parties are governed by our laws. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. P. Garvan, Inc. v. New York Central & Hudson River Railroad, 210 Mass. 275, 280. See Kline v. Baker, 99 Mass. 253.
It appears that no time for performance was fixed by the parties, and the plaintiff accordingly had the burden of proving that it tendered delivery within a reasonable time. It was a question of fact on all the evidence, and the finding that the plaintiff was not in default in failing to ship earlier, not having been unwarranted, cannot be set aside as matter of law. Sales act, St. 1908, c. 237, § 43, cl. 4. American Malting Co. v. Souther Brewing Co. supra. Nickerson v. Bridges, 216 Mass. [469]*469416, 420. The contract was completed when transfer of possession was tendered, and the price then became due and payable. Sales act, §§ 3, 19, Rule 5. Haskins v. Warren, 115 Mass. 514, 533. The defendant’s second request that there is no evidence of any contract as alleged in the declaration, and the fifth request, there is no evidence that the plaintiff performed its part of the contract were refused rightly.
By § 4, "A contract to sell or a sale of any goods ... of the value of five hundred dollars or upward shall not be enforceable by action unless . . . some note or memorandum in writing of the contract or sale be signed by the parties to be charged or his agent in that behalf.” The effect of the statute is to require certain evidence to prove that a contract has been made; and a contract can exist at common law independently of the statute. Townsend v. Hargraves, 118 Mass. 325, 332. Norton v. Simonds, 124 Mass. 19. It is settled that a letter or several letters relating to the' subject matter may constitute a sufficient memorandum. Williams v. Smith, 161 Mass. 248, 252. Nickerson v. Weld, 204 Mass. 346, 356. The question is one of fact, and the judge has found for the plaintiff. Williams v. Smith, supra. It therefore becomes necessary to review the evidence to ascertain whether his conclusion was justified. The correspondence shows that on May 20, 1920, the plaintiff wrote the defendant enclosing an itemized invoice of the butts with prices and terms of shipment, and stating that the goods had been shipped, and a "draft on you for the amount of invoice, payable on arrival of shipment” has been drawn and forwarded. The defendant replied on May 22 acknowledging receipt of the letter and, as “the butts,” meaning these butts, were not shipped promptly, he declined to accept them. On June 1 the plaintiff’s agent wrote the defendant requesting him to “ advise if you intend to take these butts in accordance with the conditions of the purchase,” and “our confirmation of sale by letter of April 13th.” The letter of April 13, thus incorporated by reference, was signed in the name and behalf of the plaintiff by Needham. It stated in substance, "We beg to confirm the conversation of the writer with you today offering you ten thousand green salted horse butts . . . and confirm your instructions” as to their shipment. The defendant replied to the letter of June 1, “I have [470] already informed your Chicago office on the 22nd of May that I will not accept the Butts as they were not shipped promptly and therefore cannot use them.” It could be found that when this letter was written, signed and posted by the defendant, he had received the letter of May 20 and the invoice enclosed in that letter, and there can be no question of his full knowledge of the terms of the contract. The letter indeed says, “the butts were not shipped promptly,” and the judge well could find that the invoice stated the contract as agreed upon by the parties. Hawkins v. Chace, 19 Pick. 502. The defendant raised no question that he was not responsible because he had not executed any contract in writing, and he did not repudiate the contract; but only' claimed that it was unenforceable because of the delay. It seems clear, or at least it could be so found, that the defendant did not object to the contract as claimed by the plaintiff, but attempted to rescind because of alleged inexcusable delay in performance. The letter of June 2 is unintelligible unless read with the previous letters. The judge could say in view of all the correspondence ending in the letter of June 1 that there was a contract which the defendant had recognized, and that it was of no consequence that he did not specifically say, “that the letter you sent refers correctly to its terms.” If the defendant had denied that he had ever made a contract, or that the plaintiff’s statement of it was incorrect, no sufficient memorandum would have been shown. Cooper v. Smith, 15 East, 103. Thirkell v. Cambi, [1919] 2 K. B. 590. If however the correspondence is read as a single instrument in the light of all the circumstances, Lee v. Butler, 167 Mass. 426, Beckwith v. Talbot, 95 U. S. 289, the case at bar comes within the doctrine of George Lawley & Sons Corp. v. Buff, 230 Mass. 21, that the defendant’s written recognition of the contract and its terms, as found by the judge, was sufficient. Townsend v. Hargraves, 118 Mass. 325, 335, 336. Louisville Asphalt Varnish Co. v. Lorick & Lowrance, 29 S. C. 533. Ryan v. United States, 136 U. S. 68, 83. Williston on Sales, §§ 101, 106, and cases cited in note 10, page 126. Compare Wilson v. Lewiston Mill Co. 150 N. Y. 314. The judge having reached this conclusion, properly declined to rule that the plaintiff could not recover, and that the contract was within the statute, and that there was no evidence of any note or memorandum signed by the party to be charged, [471] or by any person by him lawfully authorized. The remaining exceptions to the findings and rulings shown by the judge’s memorandum are disposed of by reasons previously stated.
Exceptions overruled.