Pillsbury Flour Mills Co. v. Bresky

Massachusetts Supreme Judicial Court
Pillsbury Flour Mills Co. v. Bresky, 265 Mass. 591 (Mass. 1929)
Carroll

Pillsbury Flour Mills Co. v. Bresky

Opinion of the Court

Carroll, J.

The plaintiff seeks to recover from the defendants damages because of their refusal to furnish shipping instructions for, and their refusal to receive, two thousand barrels of Semolina flour bought by the defendants from the plaintiff.

By the written contract of July 22, 1920, the defendants under the name Seaboard Flour Co. and the address Boston, Massachusetts, purchased two thousand barrels of flour in customer’s sacks at the price of $12.60 per barrel. The brand was “Semolina No. 2.” The terms were “September & October Fgt. .39 Arrival Draft.” The contract contained the clause “Delivered prices are based on present freight tariffs. Buyer agrees to pay any advance in rates.” The freight rate of thirty-nine cents was the rate from the plaintiff’s mill in Minneapolis to Boston on the day the *593contract was signed. On that day the freight rate from Minneapolis to Brooklyn, New York, was thirty-seven cents. The price $12.60 was the prevailing price for Semolina flour in Boston on that date.

The first shipping instructions sent to the plaintiff were on August 27, 1920, directing shipment of a three hundred and ten barrel car of Semolina to Wallabout Station, Brooklyn, Lehigh Valley Railroad delivery. The defendants were informed by the plaintiff that it could not ship to Brooklyn as that city was exclusively the territory of its agent Zabriskie, to whom had been given the sole right to sell Semolina No. 2 flour in Brooklyn. It was found that this brand of flour was a special kind in use by makers of macaroni and, before the contract in question was made, had been sold by the plaintiff to the defendants for delivery in Boston except in one instance when the defendants requested delivery of Semolina flour to Auburn, N. Y.; that “before the plaintiffs would sign the contract in this instance they required the defendants to set the destination.” The judge also found that it was a custom in the flour trade for a manufacturer to give to certain persons an exclusive agency in a designated territory, and that the defendants knew of this custom, although they did not know that Brooklyn was a restricted territory for the sale of Semolina flour until after August 27,1920; that the parties had had dealings for about ten years before the execution of the contract in question and the plaintiff had shipped flour in accordance with the defendants’ directions prior to this time. The judge further found that the contract was silent as to the place of delivery, and reported the case to this court.

In our opinion the contract on its face shows that the flour was to be shipped to Boston: the defendants’ trade name and address were given as “Seaboard Flour Co. Boston Mass.”; the delivered prices, $12.60 per barrel, were based on the existing freight tariffs; the rate stated, thirty-nine cents, was the freight rate to Boston; and in the absence of evidence to the contrary, or of shipping instructions given by the defendants in accordance with the terms of the contract, the plaintiff was required to deliver in Boston. *594The course of dealing between the parties was not sufficient to show that the defendants could demand delivery of the Semolina flour at Brooklyn. The course of dealing does not show that flour would be delivered to the defendants in a district which was restricted. The contract sued on had reference to a particular brand of flour. There was a custom of the trade which was known to the defendants that in certain territory no one but an authorized agent could sell the flour manufactured by the plaintiff. The parties contracted with reference to this custom. The defendants did not know that Brooklyn was restricted, but they did know that if in that city the exclusive agency was given to Zabriskie, they could not insist on a delivery there. The plaintiff was not required to deliver this brand of Semolina flour at Brooklyn. Barrie v. Quinby, 206 Mass. 259.

While the course of dealing was some evidence tending to show that the flour was to be delivered according to shipping directions given by the defendants, the evidence did not go far enough to establish a right on the part of the defendants to have the flour shipped to a city or town which was restricted. The exhibits show, as found by the judge, that none of the orders for shipment was of Semolina No. 2 or of a particular brand to be delivered in any place which was restricted. Although the evidence offered by the defendants was admissible to show the course of dealing between the parties, it was insufficient to prove that deliveries were to be made in restricted districts. The plaintiff therefore can recover. Under the terms of the report, judgment is to be entered for the plaintiff in the sum of $2,962.80 with interest from July 1, 1924.

So ordered.

Reference

Full Case Name
Pillsbury Flour Mills Company v. Harry Bresky & others
Status
Published