The opinion of the court was delivered by: KAUFMAN
Plaintiff, a New York corporation, is engaged in the export business. Defendant is the sole proprietor of a business manufacturing and dealing in chemical and dyestuffs. Plaintiff seeks to recover damages for an alleged breach of contract of sale Jurisdiction is predicated upon diversity of citizenship.
On or about February 27, 1947, Robert C. Winthrop, Jr., an agent of plaintiff and of G. R. Coleman & Co., an affiliate of plaintiff, called at the office of defendant in Boston, and expressed an interest in the purchase of various dyes. At that time, with respect to the larger producers, the demand for dyestuffs exceeds the supply, particularly for types known as 'sulphur black' and 'direct black'.
The price in the open market for sulphur black in 200% concentration ran, approximately, from $ 1.25 to $ 1.75 per pound. The market price of direct black in 200% concentration ranged from about $ 1.25 to $ 140 per pound.
Winthrop inquired of defendant whether he had for sale sulphur and direct black in 200% concentration. Defendant replied that none was available. The facts are in dispute as to what next occurred. Winthrop testified that defendant represented that he could manufacture dyes of the type and concentration desired. Defendant denied this, contending that he advised Winthrop that the colors desired could be produced by mixing other colors purchased in the open market. He testified that he told Winthrop that the concentration of the resultant of this mixture was beyond his control, and dependent upon the concentrations of the component colors, since the necessity of conforming to the desired shades rendered the ultimate concentration of the mixed color indeterminable. The fact that the dyes were to be manufactured by the mixing of various colors is not in dispute.
The prices and quantities were agreed upon and defendant, in Winthrop's presence, dictated and signed a letter dated February 27, 1947. This letter, written on both sides of one sheet of paper, and addressed to G. R. Coleman & Co., contained, amount other matters, the following provisions relevant to the issues here presented:
'It is our understanding that you will agree to take 8,000 lb. (sic) of SULPHUR BLACK * * * at 85 cents per lb. F.O.B. Portsmouth, New Hampshire. These are mixed colors.
Also that you agree to take- 5,000 lbs. of DIRECT BLACK * * * at $ 1.10 per lb. F.O.B. Portsmouth, New Hampshire, they are also mixed colors.
We agree to deliver these dyestuffs any time up to the 1st of APRIL, 1947, and if we have any left over at any time we will re-negotiate.'
Winthrop wrote across the top of the letter:
The reverse side of the letter contained the notation: ...