CALVIN HOSMER, STOLTE COMPANY vs. PARAMOUNT CONE COMPANY, INC. SAME vs. NATIONAL PASTRY PRODUCTS CORPORATION.

WAIT, J. These are actions for breach of contract to take and pay for flour. They are before us, after verdicts for the plaintiffs, on exceptions claimed by the defendants to rulings in admission and rejection of evidence; to denials of motions for directed verdicts; to refusal of requests for instructions to the jury; and to portions of the charge.

There is nothing in the exception to denial of motions for

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directed verdicts. The evidence was conflicting. We find no indisputable evidence binding upon the plaintiff which precluded recovery. In such a state of affairs the issues of fact were for the jury.

Stated succinctly, there was evidence as follows: On February 26, 1930, the defendant Paramount Cone Company, Inc. ordered from the plaintiff two thousand barrels of flour, at $5.48 per barrel f. o. b. wharf, Boston, Massachusetts. The flour was to be shipped from Oregon during the season of 1930, on written shipping orders. If the buyer failed to give shipping orders in time, the seller could ship at its own convenience or cancel the contract; whereupon the buyer should pay to the seller twenty-five cents per barrel plus or minus the market difference. This contract was oral. The parties had dealt together before. The plaintiff's method of business was to buy flour at the mills in Oregon, ship it thence to Boston in vessels arriving at Commonwealth Pier weekly, and deliver such number of barrels to its customers at the pier as they would take. It never allocated in advance any specific barrels to any particular account. It did not require written shipping orders; but, when it learned of an approaching arrival, called its customers by telephone and inquired of the purchaser how many barrels were wanted, or told him how many it purposed delivering to him. Any barrels not delivered were disposed of as rapidly as possible by "spot sales" to avoid storage expense and wharfage charges. Where "spot sales" were made, an equal number of barrels was ordered from the mills to cover the sales. In this case, the plaintiff ordered two thousand barrels at the mills, and up to June 26, 1930, delivered to the Paramount Cone Company, Inc., four hundred sixty-six barrels. It was paid the agreed price. This left fifteen hundred thirty-four barrels uncalled for. The plaintiff did not then tender the balance, demand that the balance be then taken, or state that it cancelled the contract. But, shortly after, the Paramount Cone Company, Inc., was told it must take the flour as the plaintiff wished to close up the contract. It replied it would take it as fast as it could use it. The

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market price of flour had fallen. Before November 4, 1930, two hundred thirty-eight barrels more were delivered and paid for, leaving twelve hundred ninety-six barrels undelivered. About November 4, 1930, the plaintiff, pressing the Paramount Cone Company, Inc., to take the flour uncalled for, negotiated with the National Pastry Products Corporation, a holding company with which the Paramount Cone Company, Inc., and other companies manufacturing ice cream cones, who also purchased flour from the plaintiff, were associated. To lessen the immediate loss, the plaintiff made a contract for twelve hundred ninety-six barrels of the flour with the National Pastry Products Corporation on substantially the same terms as that of February 26 except that the price was $3.93 per barrel; and agreed that deliveries should be taken one half on the balance of twelve hundred ninety-six barrels on the February contract at $5.48, and one half on the twelve hundred ninety-six barrels on the November contract at $3.93. Deliveries were so made until on July 6, 1931, there remained five hundred seventy-six barrels uncalled for upon each contract. All flour taken was paid for at the agreed prices. The contract of November 4, 1930, was in writing. On October 8, 1931, notices of cancellation were sent to the defendants after a conference between representatives of the plaintiff and of the defendants and other cone companies affiliated with them. There was conflict in the evidence with regard to what took place at the conference. These actions at law followed.

The exceptions relating to evidence need not be sustained. It is true that evidence was admitted of propositions made to dispose of the controversy by the defendants; but it was merely of conversation at the interview of October, 1931, introduced on the issue of when, if ever, cancellation of the contracts was first broached and a refusal made to accept further deliveries of the flour. We are unable tsee any prejudice resulting to the defendants. It was not used as an admission of liability. The judge did not refer to the jury the decision whether the statement was an offer of compromise. That was for him to determine. He instructed

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the jury that an offer of compromise was not "competent evidence that a cause of action exists"; but that statements made in such an offer which in themselves had a bearing on the situation between the parties - a material issue - are competent for the jury's consideration. In this he was right. Durgin v. Somers, 117 Mass. 55. Draper v. Hatfield, 124 Mass. 53, 56. Wigmore, Evidence (2d ed.) § 1061. Even had the admission been technically wrong, it does not amount to reversible error here.

The judge, of his own motion, excluded as immaterial the question: "Now, can you tell us at what prices you disposed of any of the flour?" The bill of exceptions does not make clear to what time the question referred. There was other evidence, to which no exception was claimed, that the price per barrel f. o. b. the wharf at Boston about June 1, 1931, was $3.50; on July 6, 1931, $3.25; on or about October 8, 1931, $2.90 plus three cents wharfage charge. By the terms of the contracts, as the jury could find, damages if the contracts were cancelled were to be twenty-five cents per barrel remaining undelivered plus or minus the market difference. The judge was right in regarding the price at which the plaintiff disposed of flour at the wharf as immaterial. The plaintiff never allocated any specific barrels to the defendants. No title in any undelivered flour passed to the defendants. The market price at cancellation, not any particular prices obtained at varying times, was alone material.

Manifestly there was evidence warranting findings that the plaintiff never waived nor relinquished its right to cancel the contracts whenever the defendants definitely refused to take flour under them, and that no such definite refusal was made until October 8, 1931. Requests for instructions predicated on other findings of fact could properly be refused, so long as the jury was sufficiently instructed in regard to the basic law of the case. Porter v. Harrington, 262 Mass. 203, presents different facts and a different finding with regard to waiver. It is not controlling. The charge covered the law generally applicable. No tender of flour was necessary as a prehminary to action. The defendants

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were not entitled to a reasonable time beyond October 8, 1931, for taking the flour, if on that day they definitely stated they would take no more, as the jury could find they did. There was no error in dealing with the requests for instructions.

The instructions on damages were correct. The jury could find as terms of the contracts that a right to cancel arose on definite refusal to take the flour, and that, if cancellation took place, the defendants were to pay twenty-five cents per barrel not delivered plus or minus the difference between the market price per barrel at the time of cancellation and the contract price. There was no penalty; but an agreed reasonable liquidation of possible charges.

Exceptions overruled.