274 Mass. 397 | Mass. | 1931
This is an appeal from an order of an appellate division dismissing a report of a trial judge who found for the plaintiff in an action for goods sold and delivered. The plaintiff claimed $360 as the price of one ton of “ Duralith,” “ a wall texturing ” composition at eighteen cents a pound, which, as appeared in evidence, had been shipped to the defendant upon an order taken by one of the plaintiff’s salesmen, had been received by the defendant, but had been returned upon receipt of an invoice stating the price at $360. The plaintiff refused to accept the return, and brought suit. The defendant answered a general denial, payment, and that the plaintiff’s agent had represented the price at a certain figure, in reliance upon which the defendant had given the order for two thousand pounds, but on discovery that a figure was charged greatly in excess of “ the representation and warranty,” the defendant, fraudulently induced to purchase by the agent’s misrepresentation, had informed the plaintiff, returned the goods and rescinded the contract.
The reported evidence shows that there was sharp contradiction in regard to the purchase; the defendant testifying that he thought he was buying “ California Stucco ”; the agent, that nothing but “ Duralith ” was spoken of. The principal discussion at the sale was over the price per pound, which the agent testified and the order signed by the defendant showed was eighteen cents. A price list of “ Duralith,” which the agent testified was given the defendant before the sale, showed prices ranging from twenty-five cents per pound in lots of not less than fifty pounds to seventeen cents in lots of not less than ten tons, f. o. b. New York,, with a rebate in certain cases. The defendant was to have a rebate of two cents per pound
The defendant claimed to be aggrieved by the rulings and refusals to rule as requested, by the special finding, and by the decision finding for the plaintiff on the declaration. Before the Appellate Division he waived all except the refusal to give his first two requests and Bis objections to the special and general findings. The requests were: (1) “On all the evidence, the plaintiff is not entitled to recover ”; (2) “ On all the law and the weight of the evidence, the plaintiff is not entitled to recover on its declaration.” These requests were not accompanied by specifications of the grounds upon which they are based, and thus do not comply with Rule 35 of the Municipal Court of the City of Boston (1928). The court was not obliged to consider them. Title passed on the shipment of the goods, G. L. c. 106, § 21, and there was evidence on which a finding for the plaintiff was legally possible. They were refused properly.
The contention that the special finding is inconsistent with the general finding is not sound. The judge might well believe that the defendant, as he testified, “ agreed to purchase one ton of the product at the price of . . . ($1.80) per bag; and that there would be a refund due him of. twenty cents ($.20) a bag when he purchased a three. (3) ton order,” and yet had also agreed to pay eight
This question should have been raised by a motion for a new trial (see cases just cited). It is not properly open on a report to an appellate division, at least until after a ruling by the trial judge. Had such motion been made, it might have appeared that the alleged contradiction was a clerical mistake which the judge could correct before the entry of a judgment. It is not to be taken as a precedent that we have here considered the point on the merits.
The order of the Appellate Division is
Affirmed.