Volume 242 — Massachusetts Reports

<p>Grade Crossing, Railroad. Damages, Apportionment of expense of rebuilding railroad bridge over way.</p> <p>Upon a petition for the appointment of a special commission to determine the question relative to the rebuilding of a bridge at a crossing of a railroad over a public way, it appeared that the county commissioners decreed that the existing superstructure should be removed and a new bridge constructed with more and larger and stronger beams, that the stone abutments remained unchanged except as it became necessary to enlarge the old and to cut in seats for the new beams, that the new superstructure also required a system of bracing between the beams and small concrete back walls were to be placed in the rear of the abutments, but the spatial proportions and general conditions of the way were to remain unchanged. It also appeared that in the original layout of the way was a provision, which was accepted by vote of the town, that the town would pay the cost of all future alterations in the bridge. The special commission decided that the cost of alteration of the bridge should be borne by the town. Upon a petition by the town for a jury to revise this decision, the jury, by order of the judge, returned a verdict that the town should “pay the charges and expenses of making such alteration.” Held, that</p> <p>(1) The general authority of revision given to the jury by St. 1906, c. 463, Part I, § 27, was broad enough to include an assessment and apportionment of the cost of making the alterations as between the railroad company and the town;</p> <p>(2) The action of the commissioners and of the trial court in holding that the change was an alteration was not erroneous as matter of law;</p> <p>(3) The provision in the layout that the town would pay the cost of future alteration and maintenance of the bridge was not violative of public policy, and possible future expenditures to which it subjected the town not being improper subjects for taxation, it was not illegal;</p> <p>(4) A finding was warranted that the vote of the town accepting the way as laid out was intended and was acted upon by the parties as a mutual contract.</p> <p>(5) The entire expense of the alteration should be assessed to the town.</p>

<p>Evidence, Presumptions and burden of proof. Practice, Civil, Findings by trial judge. Contract, What constitutes, Validity. Frauds, Statute of.</p> <p>At the trial of an action for breach of an alleged contract to accept and pay for certain horse hides described as horse butts, there was evidence warranting a finding that the defendant, a dealer in leather in Boston, orally agreed to buy of the plaintiff, a dealer in horse hides in Chicago, “one thousand butts, varying in price, according to certain standards,” the total amount being $4,105, that the plaintiff by letter to the defendant dated April 17 accepted the order and informed the defendant “that they would ship the thousand horse butts to the place designated by the defendant,” that the butts were shipped May 17 or 18 and arrived in Boston June 1 at the place designated by the defendant and he was duly notified; that while the butts were in transit the defendant by telegram notified the plaintiff that he would not receive them because they had not been promptly shipped, and on the arrival of the butts he declined to accept them and they were returned to the plaintiff. It appeared that no time for performance was fixed by the parties. Held, that</p> <p>(1) It was assumed that the contract was made in Massachusetts and that the legal rights of the parties were governed by the laws of this Commonwealth;</p> <p>(2) As no time for performance was fixed by the parties, the plaintiff had the burden of proving that it tendered delivery within a reasonable time;</p> <p>(3) It was a question of fact on all the evidence whether delivery was tendered within a reasonable time and, a finding that the plaintiff was not in default for failing to ship earlier not having been unwarranted, such a finding could not be set aside as matter of law;</p> <p>(4) The contract was completed when transfer of possession was tendered and the price then became due and payable;</p> <p>(5) Requests for rulings that there was no evidence of any contract as alleged in the declaration and that there was no evidence that the plaintiff performed its part of the contract were refused rightly.</p> <p>At the hearing of the above described action by a judge without a jury there was evidence that the plaintiff on May 20 wrote to the defendant enclosing an itemized invoice of the butts with prices and terms of shipment; that the defendant replied on May 22 acknowledging receipt of the letter and stating that as “the butts” were not shipped promptly he declined to accept them; that on June 1 the plaintiff’s agent wrote the defendant requesting him to “advise if you intend to take these butts in accordance with the conditions of the purchase,” and “our confirmation of sale by letter of April 13th,” which was signed in the name and behalf of the plaintiff by the agent and stated in substance “We beg to confirm the conversation of the writer with you today offering you ten thousand green salted horse butts . . . and confirm your instructions” as to their shipment; that the defendant replied to the letter of June 1 “I have already informed your Chicago office on the 22nd of May that I will not.accept the butts as they were not shipped promptly and therefore cannot use them;” that when this letter was written he had received the letter of May 20 and the invoice enclosed in that letter. Held, that</p> <p>(1) The trial judge well could find that the invoice stated the contract as agreed upon by the parties;</p> <p>(2) The correspondence may be read as a single instrument in the light of all the circumstances and when so read is sufficient to satisfy the requirements of the statute of frauds;</p> <p>(3) The trial judge, having reached this conclusion, properly declined to rule that the plaintiff could not recover, or that the contract was within the statute or that there was no evidence of any note or memorandum signed by the party to be charged, or by any person by him lawfully authorized.</p>