Silvestri v. Missocchi , 165 Mass. 337 ( 1896 )

Holmes, J.

The defendant argues that the special facts found by the auditor do not warrant his conclusion that the goods were delivered at points on the line of the Portland and Rumford Falls Railroad. The auditor finds that the packages were marked for those points, and were delivered to an express-man to take to the freight office in Boston, that bills of lading and what purported to be a receipt from some one at the freight office were returned to the plaintiff by the expressman, and that no complaint that the goods were not received was made by the party who ordered them. This is some evidence that the goods were received at their destination, on the same principle that is applied to the case of letters put into the post office. Huntley v. Whittier, 105 Mass. 391. Briggs v. Hervey, 130 Mass. 186, The argument for the defendant seems to be that the goods were put under the buyer’s control when delivered to the railroad in Boston, and therefore were not within the terms of the guaranty. The words of the contract are “ goods furnished . . . along the line of the ” railroad. These words manifestly contemplate that the goods may be shipped by rail and delivered by the railroad to the purchaser. They apply equally whether the railroad was the seller’s or the buyer’s bailee. In a strict sense, if that were material, the goods were not delivered until they left the bailee’s hands. Hallgarten v. Oldham, 135 Mass. 1, 9.

It is argued further that there was no evidence that the goods were furnished to the buyer during the continuance of the works to be performed by him as required by the guaranty. It does not appear that the auditor’s attention was called to this point, and therefore the details of his report are less definite with regard to it than they might have been. Plainly, from the evidence offered by the plaintiff as to what contractors were in the habit of furnishing their employees, it was understood or assumed that the goods were within the contract in this respect. But it is enough to say that the auditor found for the plaintiff, and that nothing about the matter appears in his report which shows that he was wrong. These are the only points argued.

Exceptions overruled.