These are two actions of contracts based upon sales of goods. For convenience we treat each case separately.
First Case.
This is an action to recover for goods sold and delivered. On December 29, 1916, the defendant at the plaintiffs’ place of business in Boston made an agreement to buy of the plaintiffs “ten (10) bales of oil mill motes at 4% c. per pound, F. O. B. Boston, terms 1%, 10 net 30 days, to be shipped by the N. Y., N. H. & *48H. R. R. — to be shipped at once to New York.” There was no dispute between the parties as to the terms of this agreement. These goods were shipped to the defendant by the carrier named on December 30, 1916, and a non-negotiable bill of lading was issued on that date, the defendant being named as consignee. This bill of lading was not forwarded to the defendant, but was retained by the plaintiffs, who sent no notice to the defendant respecting it. Owing to other differences between the parties, the plaintiffs on January 11,1917, and again four days later, wrote in substance to the defendant that they would not deliver to him the oil mill motes unless he accepted and paid demand or sight draft less one per cent discount. The plaintiffs also notified the carrier at Boston, on January 9, not to deliver the mill motes to the defendant. .The defendant on January 11, 1917, brought an action in New York City for breach of contract and there attached goods of the plaintiffs alleged to be in the possession of the New York, New Haven, and Hartford Railroad.
The bill of lading is not printed in the record. The plaintiffs testified that the “defendant could get the goods on arrival without bill of lading.” The defendant testified that without the ['bill of lading, as matters stood, he could not get possession of the mill motes.” The court refused to- grant the defendant’s sixth request for ruling, which amongst other matters contained a statement of fact to the effect that the defendant could not obtain the possession of the motes without the bill of lading. There was no other evidence and no express finding respecting the bill of lading and its effect on delivery to the defendant in New York. Under the circumstances it must be assumed that mere failure of the plaintiffs to forward it to the defendant had no effect on his right to demand delivery of the goods in New York. See, in this connection, In Matter of Bills of Lading, 14 I. C. C. Rep. 346, and New York Central & Hudson River Railroad v. York & Whitney Co. 230 Mass. 206, 213, 217. It is the general rule that a non-negotiable contract.of shipment by a common carrier is discharged by delivery to the consignee without the surrender or production of the bill of lading. The fact that one is consignee is evidence of ownership. Brown v. Floersheim Mercantile Co. 206 Mass. 373, 375. Rosenbush v. Bernheimer, 211 Mass. 146, 149, 151.
*49The contract between the parties was plain. The ordinary rule is that, in case of sales of goods to be shipped by the .vendor from one place to another, delivery to the carrier is delivery to the buyer unless there is special agreement to the contrary. Fechteler v. Whittemore, 205 Mass. 6, 11. Twitchell-Ghamplin Co. v. Radovsky, 207 Mass. 72, 75. Levy v. Radkay, 233 Mass. 29, Sales act, St. 1908, c. 237, §§19 and 46. Delivery of the goods to the carrier together with the taking of a non-negotiable bill of lading in the name of the defendant was strong proof of intention by the plaintiffs to transfer the title to the defendant. Wigton v. Bowley, 130 Mass. 252. The general finding of the trial judge in favor of the plaintiffs imported a finding in their favor on the point of delivery.
The attempt of the plaintiffs by notice to the carrier not to deliver to the defendant was not of decisive consequence. The goods theretofore had been delivered to the carrier; it held as bailee for the defendant to whom the title had passed. The letters of the plaintiffs endeavoring to get the defendant to pay before the due date of the contract were ineffectual to restore to them a title which already had vested in the defendant. These subsequent acts of the plaintiffs had no effect upon substantial elements of the contract which were already executed. R. H. White Co. v. Jerome H. Remick & Co. 198 Mass. 41, 48. Daley v. People’s Building, Loan & Savings Association, 178 Mass. 13, 18. The finding of fact of the trial judge in favor of the plaintiffs was warranted by the evidence. No error of law is disclosed on the record.
The finding of the judge for the plaintiffs is to stand and judgment is to be entered accordingly.
So ordered.
Second Case.
This is an action to recover damages for breach of a contract by the defendant to buy of the plaintiffs a car of willowed-picker at five and three quarters cents per pound. The negotiations were oral. When the bargain was struck, an unsigned memorandum dictated by one o£ the plaintiffs was written, in which the price was stated as four and three quarters cents per pound. The judge found on conflicting evidence that this was a mistake and 'that *50the price agreed upon was five and three quarters cents per pound, that the defendant repudiated the sale, and that until such repudiation the plaintiffs were ready and willing to perform the contract, and that thereafter^the plaintiffs resumed control of the property. The evidence disclosed by the record plainly warranted the finding that the terms of the agreement actually made were clear, that the defendant seized upon the clerical error in the sales slip or memorandum and persistently declared that that expressed the terms of the contract. His conduct in this connection constituted a repudiation of the only contract made. Utter denial of an essential, term of a contract may be equivalent to a disavowal of the contract. Moreover, the defendant refused seasonably to give shipping instructions. Mullaly v. Austin, 97 Mass. 30. King v. Faist, 161 Mass. 449. Kehlor Flour Mills Co. v. Linden, 230 Mass. 119, 130.
The correct rule of law was followed in assessing damages. It was the difference between the contract price and the fair market price at the time ánd place fixed by the contract for performance. Barrie v. Quinby, 206 Mass. 259, 268. The evidence, while slight upon this point, cannot be pronounced insufficient to warrant the finding. Houghton v. Furbush, 185 Mass. 251. Maynard v. Royal Worcester Corset Co. 200 Mass. 1, 8.
Order dismissing report affirmed.