Metropolitan Coal Co. v. Boutell Transportation & Towing Co. , 196 Mass. 72 ( 1907 )

Loring, J.

1. The defendant’s exceptions to the refusal of the judge to give the first and seventh rulings asked for by it must be overruled.

The judge was warranted in finding as a fact that the plaintiff intended to accept the written offer dated September 26, 1899, and signed “ Wm. H. Mack, Manager.” The evidence also warranted the judge in finding as a fact that, in addition to the unsuccessful attempt to accept it in writing, the plaintiff through its president verbally instructed the broker to accept it and ratified his action in accepting it when notified that he had done so. There is nothing inconsistent in the plaintiff’s accepting a written offer both by word of mouth and in writing. And if it turns out that, through an unguarded expression in the writing, the writing is not, although it was intended to be, an acceptance, the oral acceptance which is not open to that objection is good. The difficulty with the defendant’s argument here is that in it he assumes that, if there is an attempt to make a written acceptance of a written offer, the result is the same as it is when the parties have reduced their agreement into a written contract. That assumption however is a mistake. When one attempts to accept in writing an offer made in writing there is no mutual agreement that certain specific written words shall stand as a statement of the trade ultimately struck between them. The question and the sole question is: Did the person to whom the offer was made accept it ? A dozen unsuccessful attempts to accept it do not affect the validity of one which is successful, at any rate where the intention in case of all the attempts was to accept it.

2. Again, the_ defendant’s exception to the refusal of the judge to give the first, third and fourth rulings asked for by it must be overruled. The defendant’s main contention in support of this " exception is that the offer was to furnish a tug of one thousand horse power, and that the letter of Mr. Friend which is relied on as the acceptance of that offer is to hire a tug which will tow eight thousand tons of coal. As matter of construction of this letter, we do not think that that is so. Mr. Friend in his letter, speaking for the plaintiff, writes that the offer made is accepted. His statement of the offer is not altogether accurate. Construing the letter of acceptance as a whole, in connection with the written offer, we are of opinion that, as matter of construction, the tug referred to in Friend’s letter of September 28 was to be a tug of one thousand horse power.

There is another discrepancy between the offer and the recital of it in Mr. Friend’s letter of acceptance which is relied on by the defendant. We are of opinion that this also is disposed of by a proper construction of Mr. Friend’s letter of acceptance. The offer states that the service is to begin “ before Nov. 1st,” while the recital of the offer in the letter of acceptance states that it is to be “ from Nov. 1st or earlier.” “ From Nov. 1st or earlier ” is not the exact equivalent of “ before Nov. 1st.” But as matter of construction of Mr. Friend’s letter which states that the offer is accepted we are of opinion that “ from Nov. 1st or earlier” must be construed to mean “before Nov. 1st.”

3. The defendant’s exception to the refusal of the judge to give the first and sixth rulings asked for by it must be overruled. The defendant’s contention in support of this ruling is that the only acceptance that Friend was authorized to convey to the plaintiff was that contained in the letter of the defendant’s president dated September 28. We have already pointed out that this is not true either in law or in fact, and this exception falls.

4. The defendant’s exception to the refusal of the judge to give the second ruling asked for by it must be overruled.

The defendant’s argument in support of this contention is that the plaintiff first learned of Mr. Friend’s letter at the former trial, and that it was then too late for it to ratify that acceptance. But that is not so. There was testimony that the president of the plaintiff company was told by Friend before noon of September 28 (the day referred to in the postscript of the written offer dated September 26 as “ Thursday noon ”) that he had accepted the offer in behalf of the plaintiff, and that the president of the plaintiff expressed his satisfaction and approval at that time. There is nothing in this contention, and, as we have before said, there is nothing inconsistent in this connection between the position taken by the plaintiff at the first trial and that taken here.

5. The exception taken to the refusal of the judge to give the tenth, eleventh and twelfth rulings asked for by it must be overruled.

The presiding judge, acting upon the rule laid down in Simonds v. Heard, 23 Pick. 120, Tucker Manuf. Co. v. Fairbanks, 98 Mass. 101, Davis v. England, 141 Mass. 587, and Brown v. Bradlee, 156 Mass. 28, was warranted in finding that Mack in fact intended when he signed this letter to bind the defendant corporation; and we are of opinion that, if he did, and the contract was within his ostensible authority, the rulings asked for could not be given.

It is plain that the defendant would have been right in this connection if the presiding judge had given credit to all the statements testified to as having been made by Mack before his death. But it is manifest that the presiding judge did not believe the facts to be what it was testified that Mack stated them to be. The question is whether on any aspect of the evidence which the judge could have taken he could have found that when Mack signed the written offer dated September 26 “ Wm. H. Mack, Manager,” he intended to bind the defendant corporation. The first fact in this connection is that he was general manager of the defendant corporation, with an office in Boston, where the negotiations leading to the offer took place, and where the offer was made; and that the only business carried on by him in Boston was as manager of the defendant corporation. The defendant has sought to weaken the force of these facts by two pieces of testimony, namely: Mitchell in his testimony said “ that he knew of his being engaged in the management of other vessels on the lakes,” and Gilchrist testified “ that he knew of the management by Mr. Mack on the Lakes in 1899 of the steamer ' Pratt ’ and the consorts ‘ Athens,’ the steamer ‘ George W. Roby,’ and the steamer ‘ B. H. Ketchum,’ which were owned by different companies.” In the first place the judge was not bound to believe this testimony; in the second place he was not bound to construe it as referring to September, 1899; and in the third place he was not bound to infer that “ Wm. H. Mack, Manager,” referred to these enterprises on the lakes. The question before him really narrowed itself down to which of the two facts he was warranted in finding that “ Wm. H. Mack, Manager,” meant, viz.: manager of the defendant corporation, or manager of the vessels which he hoped to acquire to fulfil this contract on his own account when and if he got them. And it is to be remembered that the question we are now discussing did not arise until the presiding judge had come to the conclusion that he did not credit the defendant’s testimony that the written offer of September 26, 1899, was conditional on his getting the necessary vessels, — a conclusion which it was hard to credit in the light of the postscript limiting the time during which the offer was to remain open to noon of the next day but one after the offer was made. The use of the words “ we will agree to furnish ” in place of “ I will agree to furnish,” unless used inaccurately, means that the offer was not made by Mack personally, and consequently “ Wm. H. Mack, Manager,” did not mean manager of his own vessels when and if he secured them. In addition the testimony of Gilchrist that Mack told him “ that they had more business for their boats — they were tied up or had all they could do and had other business offered him that he could get if he had other boats to carry it,” — might be construed by the judge to mean that the defendant corporatian had more business, etc., and so to lend corroboration to the conclusion that by “ Wm. H. Mack, Manager,” the defendant corporation in fact was intended.

Again the fact that Mack in his despatch and letter to Boutell, who was vice-president of the company and owner of the tug Traveller, spoke of the tug Traveller and of the tug Smith in the same connection, and. particularly his statement that “ You can talk with Capt. McCarthy and see what his idea is about having the tug down here in addition to the two belonging to the company,” also lends, or might be so construed as to lend, some corroboration to the conclusion that he was trying to get the tug Traveller for the defendant corporation.

For these reasons we are of opinion that the evidence warranted a finding that “ Wm. H. Mack, Manager,” in fact meant the defendant corporation.

If “ Wm. H. Mack, Manager,” was intended to mean and in fact did mean the defendant corporation, it is plain that it binds the corporation, provided such a contract was within the ostensible authority of its general manager.

Further, we cannot doubt that such a contract is within the ostensible authority of the general manager and only officer conducting the business of a corporation engaged in carrying merchandise and particularly coal in barges towed by tugs without regard to the barges and tugs owned by the corporation, so that one contracting with such a company is not bound to ascertain that the company then owned the barges and tug which the company agrees to furnish.

6. The only other exception argued by the defendant is its exception to the refusal of the Superior Court to recommit the report of the assessor because the assessor refused to adopt the second ruling asked for by it at the hearing before him.

After a finding by the Superior Court that the offer set forth in’ the letter of September 26 was made by the defendant and accepted by the plaintiff, the case was sent to an assessor to find the amount of damages due. It appeared that the defendant repudiated the contract on October 7, 1899.

The assessor found that: “If there had been a number of barges and tugs to be had in the market at the time upon a time charter similar to this, and if there was what might fairly be called a market rate for such charters on or about October 7, 1899, then the loss would be measured by the difference between what it would have cost the plaintiff to land its coal in Boston under the contract and what it would have cost under a charter made at the market rate on or about October 7, 1899. I find and report, however, that barges and a tug were not to be had on such a charter at the time the defendant gave notice that it should not perform its contract, nor afterwards up to May 1, 1900, at any price which could fairly be called a market price, or which the plaintiff could wisely or properly pay; nor were sailing vessels to be had on time charters of this sort at prices which it would have been proper or wise for the plaintiff to pay. ... It is not credible that the plaintiff under the circumstances of this case should rely only on the breach of the defendant’s contract and not use its best efforts to minimize the loss occasioned by that breach. I believe that it did so use its best efforts and that the course which it adopted was the reasonable and proper one. It chartered from time to time, according to its needs and on the best terms that could be got, vessels of various sizes and sorts, to bring its coal to Boston during the term covered by the contract.”

The assessor next found what in fact it had cost the plaintiff per ton on an average to bring all the coal brought by it to Boston from Newport News during the term for which the contract was to run. He then found what it would have cost the plaintiff per ton to carry the coal which it would have carried under the contract on the same basis, to wit, on the basis of rates from Newport News. He then multiplied the number of tons of coal which the plaintiff could have carried under the contract by the difference between the two rates ascertained as above, and reported that to be the loss sustained by the plaintiff from the defendant’s breach of its contract.

The contract was for a tug of one thousand horse power and four or five barges capable of carrying eight thousand tons of coal at $225 per day, beginning before November 1, 1899, and continuing until May 1,1900. Under the findings of the assessor the plaintiff was forced to bring its coal by sailing vessels, and it appeared from the evidence that the rates of freight for coal brought ,by sailing vessels was so much a ton. The coal which would have been brought under this contract was a part and apparently a somewhat small part of all the coal brought to Boston by the plaintiff during the period covered by the contract here in question.

The ruling now in question asked for by the defendant and refused by the assessor is as follows: “ Second. The defendant requests the assessor to rule that the primary rule of damage is the difference between the cost of transporting the coal under the Mack contract and what it would have cost to have carried it by tonnage secured on October 7, 1899, or within such time thereafter as it could have been secured to cover the period of the contract; and the defendant objects and excepts to the assessor’s refusal so to rule, and requests that the evidence bearing on said ruling be reported.”

The argument of the defendant in this connection is that the plaintiff cannot be permitted to hold the defendant in damages for the difference between the price under the contract and the price at some later period fixed upon at his discretion as the period at which he will supply the deficiency.

Had there been a market rate for what the defendant had contracted to furnish, the defendant’s argument would have been sound.

But not only was there no market rate on October 7,1899, for a charter party covering a tug of one thousand horse power and barges to carry eight thousand tons of coal for the period in question, but these vessels could not be got at all.

The defendant in effect insists that under these circumstances it was bound to sit down on October 7, or as soon after that day as was reasonable, and estimate how much coal it would have brought to Boston under the contract, and make a contract for the transportation by sailing vessels of that amount of coal to fulfil the contract; and not having done so it can recover nominal damages only.

Without intimating what would be or might have been the rule had the coal to be carried under the contract been the only coal to be brought to Boston by the defendant, we are of opinion that having regard to the fact that the coal to be brought under the contract was but a part and apparently a small part of the coal to be brought there by the plaintiff, this was not of necessity the only course open to it.

In the second place, the assessor was not bound as matter of law to find that a contract could have been made for the transportation by sailing vessels of the amount of coal which would have been carried under the contract.

There was some general testimony that rates for successive trips were lower than for single trips in the fall of 1899, and that sailing vessels were to be had at that time. If this evidence would have warranted a finding that such a contract could have been made, the assessor was not bound as matter of law to make that finding. The ruling asked for is absolute and not conditional on a finding that such a contract could have been made.

Finally, not only was the ruling asked for not conditional on a finding that such a contract could have been made, but it is not conditional on the making of that contract (if it could have been made), being the only reasonable course for the plaintiff to pursue.

The assessor in effect has found that the plaintiff, acting throughout in good faith, took a reasonable course to get all its coal transported to Boston at the lowest cost, and that the difference between what it in fact cost it (the plaintiff) to transport coal to Boston and what it would have cost it to transport coal under the contract in question had it been kept, could be found to be the measure of the damages suffered by the plaintiff from the breach of this contract under the circumstances which existed. We are of opinion that the assessor was not bound to adopt the rule laid down in the second request made by the defendant.

Exceptions overruled.