Day v. Mapes-Reeve Construction Co.

| Mass. | Oct 20, 1899

Hammond, J.

The contract called for “ common hard brick,” and the ruling that there was a warranty that the brick should come up to the standard implied by that term was correct.

The court refused to rule that the knowledge on the part of the plaintiffs of the purpose for which the brick were tó be used created an implied warranty that they were reasonably fit for that use, but on the contrary ruled that the facts proved did not, as matter of law, create any such warranty, and, having so ruled, did not find as a.fact that there was any such warranty.

In all this we find no error.

While the plaintiffs had a general knowledge that the brick were to be used in the construction of the building named in the contract, they nevertheless knew nothing of the plans and details. With this degree of knowledge as to the building, they agreed to furnish all the common hard brick needed in its construction, and the reference to it in the contract seems to have been made for the purpose of determining the number of brick rather than their quality.

It is found as a fact that without unreasonable difficulty on the part of the defendant the soft brick could have been thrown out. It further ■ appears that the brick as delivered were subjected to an inspection by the defendant, and that many were rejected as soft, and also that the defendant’s superintendent knew that soft brick were being used in the walls of the building.

We think the court was justified in finding that the defects complained of were obvious, that there was ample opportunity for inspection by the defendant, and that such inspection was made, and that it was in the contemplation of the parties that it should be made; that neither party supposed that the defendant was trusting to the judgment or skill of the plaintiffs, and that the defendant did not so trust, but relied upon its own judgment, and accepted soft brick with the means of knowing and actually knowing their quality; and that the evidence did not conclusively show that the parties contemplated or understood as a part of the contract that the responsibility of selecting the brick actually to be used in the building rested upon the plaintiffs.

The contract was a simple case of the sale of a common article of merchandise, and the principle invoked by the defendant is not applicable.

The rule of damages applied by the court was correct. The defendant having used the soft brick, knowing their quality, must pay for them.

Since all the exceptions arising upon the admission or rejection of evidence are material only upon the theory that the defendant’s claim of special warranty of fitness is correct, it becomes unnecessary further to refer to them.

Exceptions overruled.