Twitchell-Champlin Co. v. Radovsky

Massachusetts Supreme Judicial Court

Twitchell-Champlin Co. v. Radovsky

92 N.E. 1038, 207 Mass. 72, 1910 Mass. LEXIS 723

Massachusetts Supreme Judicial Court·Decided November 22, 1910·Published·Cited by 7 cases

Opinion

Braley, J.

The defendant contends, that, as the goods when packed were to be shipped to him by rail at a price from which the cost of transportation was to be deducted, the title did not ' pass until their arrival at his place of business. But there was no express clause in the agreement that this expense was to be borne by the seller, and, while the amount undoubtedly measured what the buyer would have to pay for carriage, the stipulation could be found to have been intended by the parties as a discount from the seller’s regular prices, and not as a prepayment of the freight. The question was one of fact, and the finding for the plaintiff, having been warranted by the evidence, cannot be revised. Suit v. Woodhall, 113 Mass. 391. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. It being settled that, unless there is an agreement or usage of the trade to the contrary, delivery to the carrier is a delivery to the buyer, when the sale becomes complete, the case at bar falls within this familiar rule, and, the title having passed, the refusal of the defendant to accept the clams was unjustifiable, and furnishes no defense to the action for the price. Barrie v. Quinby, 206 Mass. 259. The plaintiff concedes, and the judge so ruled, that by a fair construction of the contract the defendant was entitled to the benefit of any decline in price during the period between the date of sale and the time of the shipment of the last invoice. But his further contention, that in the adjustment of the amount due, the plaintiff having allowed on the first invoice a special [76] discount below the regular price charged to other customers, he was bound on the second invoice to make a similar discount, is not in accordance with the terms of sale. The agreement was to give him the benefit of any drop in prices which they gave to other customers even if less than the contract called for, and, the price charged having been upon this basis, the defendant has no ground of complaint.

The requests were rightly refused, and the exceptions must be overruled.

So ordered.

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Braley, J.

The defendant contends, that, as the goods when packed were to be shipped to him by rail at a price from which the cost of transportation was to be deducted, the title did not ' pass until their arrival at his place of business. But there was no express clause in the agreement that this expense was to be borne by the seller, and, while the amount undoubtedly measured what the buyer would have to pay for carriage, the stipulation could be found to have been intended by the parties as a discount from the seller’s regular prices, and not as a prepayment of the freight. The question was one of fact, and the finding for the plaintiff, having been warranted by the evidence, cannot be revised. Suit v. Woodhall, 113 Mass. 391. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. It being settled that, unless there is an agreement or usage of the trade to the contrary, delivery to the carrier is a delivery to the buyer, when the sale becomes complete, the case at bar falls within this familiar rule, and, the title having passed, the refusal of the defendant to accept the clams was unjustifiable, and furnishes no defense to the action for the price. Barrie v. Quinby, 206 Mass. 259. The plaintiff concedes, and the judge so ruled, that by a fair construction of the contract the defendant was entitled to the benefit of any decline in price during the period between the date of sale and the time of the shipment of the last invoice. But his further contention, that in the adjustment of the amount due, the plaintiff having allowed on the first invoice a special [76] discount below the regular price charged to other customers, he was bound on the second invoice to make a similar discount, is not in accordance with the terms of sale. The agreement was to give him the benefit of any drop in prices which they gave to other customers even if less than the contract called for, and, the price charged having been upon this basis, the defendant has no ground of complaint.

The requests were rightly refused, and the exceptions must be overruled.

So ordered.

Twitchell-Champlin Co. v. Radovsky, 92 N.E. 1038, 207 Mass. 72, 1910 Mass. LEXIS 723 (Mass. 1910).

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