Holbrook v. Setchel , 114 Mass. 435 ( 1874 )

Wells, J.

Upon the statements in the bill of exceptions, there was a completed sale and delivery of the stock of goods. All the questions raised at the trial relate only to the prices to be paid, . By the contract, those were to be determined in either of three modes. First, “ for such portion of said goods as the said Holbrook shall produce invoices of, the cost price of the same is to be determined by said invoices. ’ Second, “ for such portion of the goods, the cost of which cannot be shown by invoices produced, such prices as shall be agreed upon between said Holbrook and said Setchel.” Third, “ or in case of their inability to agree, then at such prices as shall be fixed upon and determined by E. B. Partridge.” From the total amount so ascertained, there was to be a deduction of twenty per cent.

The instructions from the court presented the case to the jury in precise accordance with these provisions of the contract; and were such as to enable them properly to apply the evidence to the issue before them.

Independently of the proofs in regard to fixing the prices at the time of the transfer of the property, and even if those prices had never been fixed in accordance with the provisions of the contract, if there was a subsequent agreement to pay a specified balance, that sum might be taken by the jury as the true amount of the purchase money then remaining due. The instructions on this point were also correct.

The evidence tended to show that when the stock was examined and the invoice made up for the transfer, Partridge was present for the purpose of deciding all cases of failure to fix the price by the first or second mode provided. Even if the .plaintiff was bound to produce all the invoices in his power, or it ;had been agreed that, after making up the lists with the prices named by him, he “ should produce invoices to verify estimates,” and be failed to do so, it was too late to call upon him for such invoices after having proceeded to close the transaction without them, and especially after the defendant “ had been selling from the goods more than two months.”

The evidence offered in regard to certain invoices produced, the prices upon which “ did not conform to the cost prices given by the plaintiff, but were in excess of that cost as $4500 to $2500,” related, as we suppose, to the “Waltham goods.” The invoices of those goods “ amounting to nearly $4500 ” showed the cost to the person from whom the plaintiff purchased at “ $2500 for the whole, irrespective of their cost to the seller.” That “ the cost prices given by the plaintiff ” amounted to $2500 only, while the invoices produced showed $4500, was no wrong to the defendant, certainly, and did not show that false invoices were produced, or that the plaintiff could or ought to have produced any others. We see no sufficient ground for sustaining the exception to the exclusion of this evidence.

The court also excluded evidence offered by the defendant “ to show that a lot of molasses, bought of Thomas Dana & Company, was called by the plaintiff as costing more than it actually did, although no invoice of this molasses was produced, or asked for, nor did it appear that the plaintiff had any.” But the cost to the plaintiff was not to govern prices in this sale, unless he produced invoices. In the absence of invoices, the parties were to agree upon the prices, or have them fixed by Partridge. A misstatement of the cost to the plaintiff might affect the defendant in agreeing upon the price; but unless it was fraudulent or an intentional misstatement, it would not defeat the agreement as to the price. The offer did not go far enough, and the exception to its exclusion cannot prevail.

We do not discover any other point in the bill of exceptions which requires to be considered.

Exceptions overruled.