Shaw v. Nudd , 25 Mass. 9 ( 1829 )

Parker C. J.

delivered the opinion of the Court. We have no doubt the contract on which the action is brought, is the defendant’s contract. He, by the intervention of Winsor, who was'the plaintiff’s agent, authorized Coombs to enter into the contract for him, and he received from Coombs a counterpart of the contract signed by Winsor for Shaw, without objecting to it; and it appears abundantly by his conversation with divers witnesses, that the contract was made for him.

There was no necessity that the authority of Coombs should be in writing,¹ nor can it be objected that Winsor, who communicated the authority from Nudd to Coombs, was interested in the speculation. The adoption of the contract by Nudd would be quite sufficient, even if there were no antecedent authority. Merritt v. Clason, 12 Johns. R. 103.²

There being then a contract, the questions are, what is the purport and meaning of it; has it been broken ; what are the damages.

The plaintiff contends that the writing is one entire contract for the sale and delivery of the fish in Boston ; the defendant, that it is a sale at Newburyport, and an independent contract to carry the fish to Boston. And the damages will be greater or less, according to the adoption of one or the other of these constructions. If the sale was completed at Newburyport, then the price of the fish there when they were demanded, is the rule of damages ; if it was an executory contract to sell and deliver in Boston, then the price at Boston.

We think the latter is the true construction ; that it is an entire contract ; that the fish did not become Shaw’s on the execution of the writing ; there was no delivery ; they were liable to attachment as Nudd’s ; and Shaw could not maintain trover against a second bond fide purchaser. The fish were agreed to be sold, not sold ; that is, the property in them was not transferred.

The contract appears to us to be, to sell and deliver the fish at Boston. Twelve shillings and three pence were the price per quintal, but nine cents were to be added for the expense of transportation. Shaw was to pay wharfage, and the fish were to be at his risk when on board. Why was this, if the sale was absolute at Newburyport? Nudd is to pay other incidental charges, that is, for shifting the fish from the flakes to the wharf, culling, &c. It is evident that the property in the fish was to remain in Nudd, and that he could have retained them in Boston until the price was paid. The assumption of risk by Shaw, xvas an agreement to insure. There were not two contracts, but one. The defendant stipulated to carry his fish to Boston and deliver them to Shaxv on payment of the price, with the additional sum for transportation.

What then will indemnify the plaintiff for the breach of this contract ? Only the value of the fish at the place'where they ought to have, been delivered. Shall the defendant voluntaria and wantonly break his contract and gain by it ? We think not. The purchaser is entitled to the thing sold, or its value. As to bringing doxvn the damages to the time of trial, that would be so fluctuating and uncertain, it cannot be a good rule. The xvrong is done xvhen the contract is broken, and the value of the thing when and xvi c-e it ought to be delivered, is the indemnity. Gainsford v. Carroll, 2 Barn. & Cressw. 624; Shepherd v. Hampton, 3 Wheaton, 200; Kennedy v. Whitwell, 4 Pick. 467; [2d edit. 467, note 1;] Cooper v. Chitty 1 Burr. 31; 3 Dane’s Abr. 194; Mercer v. Jones, 3 Campo. 477.¹

Judgment for the plaintiff.

1 See Story’s Comm, on Agency, 51, 52.

2 See First Parish in Sutton v. Cole, 3 Pick. 232; Emerson v. Newbury, 13 Pick. 279; Story’s Comm, on Agency, 234, etseq

1 See Paries v. Boston, 15 Pick. 206 ; Pearson v. Purkett, 15 Pick. 264 ; Stone v. Codman, 15 Pick. 300 ; Sargent v. Franklin Ins. Co. 8 Pick. 100 ; Chitty on Contr. (4th Am. ed.) 683, in notes, and 352, 353, and notes ; ¡'Veils v. Shernethy, 5 Connect. R. 222 ; Gleason v. Pinney, 5 Cowen, 152 ; Kelson v. Ford, 5 Hammond, 474 ; Stevens v. Lyford, 7 New Hampsh. R. 360 ; Dcy v. Dox, 9 Wendell, 129 ; Shepherd v. Hampton, 3 Wheaton, 200, 204 ; Clark v. Pinney, 7 Cowen, 687 ; Connell v. MlClean, 6 Har. & Johns. 297; Witlings v. Conseqya, 1 Peters’s Cir. Ct. R. 172,176; Williamson v. Dillon, 1 Har. & Gill, 444