307 Mass. 456 | Mass. | 1940
The plaintiffs in the first case, dealers in sandpaper, seek by a count upon an account annexed- to recover the purchase price, storage charges and interest upon a sale of two hundred rolls of buffing paper in accordance with order numbered 2022 given to them by the defendant, a corporation engaged in the manufacture of leather.
The bill of exceptions, which sets forth portions of the testimony of various witnesses, states that it contains all the evidence material to the questions of law raised by the buyer. The bill also states that the findings of fact made by the judge were warranted by the evidence. These findings must therefore be considered as final unless shown to be vitiated by some error of law. Moss v. Old Colony Trust Co. 246 Mass. 139. Kennedy Bros. Inc. v. Bird, 287 Mass. 477. Howard v. Malden Savings Bank, 300 Mass. 208.
It appears from these findings that the buyer, on May 16, 1934, gave order 3062 for the purchase from the sellers of one hundred rolls of “5/0 sandpaper” and one hundred rolls of “6/0 sandpaper” to be delivered as called for. This order was given after the buyer had tested and experimented in order to determine what grade of paper could be used by it in manufacturing leather, and had determined on its own independent judgment that grades 5/0 and 6/0 were fit for its particular purposes. The sellers knew that uniformity in the abrasive qualities of the paper was required for the buyer’s manufacturing process but that absolute uniformity was an impossibility although a reasonable degree of uniformity was possible and essential. The buyer, on April 15, 1936, gave the sellers order 2022 for one hundred rolls of 5/0 sandpaper and one hundred
The ruling that the two orders constituted separate contracts was right. One order was given in 1934 and the second in 1936. Each order contained two distinct items with a particular price for each item. The purchase under the order of 1934 was for a different lot of goods from that included in the order of 1936, although both purchases were for similar goods. Each transaction was a complete contract in itself. It is plain that the intention of the parties, gathered from the orders of purchase in the light
The judge found that no evidence was introduced tending to show whether the paper held by the sellers under order 2022 had abrasive qualities of reasonable uniformity. The facts that both lots of paper were produced by the same manufacturer, that they bore the same grade numbers, and that goods of the same numbers delivered under a previous order were not of reasonable uniformity in abrasive qualities, were not evidence that goods included in the second order lacked such uniformity. It may be that the fact that no evidence was introduced as to whether the paper included in order 2022 complied with the implied warranty resulted from the specifications filed by the buyer that its refusal to accept the paper was based solely upon the ground that the paper purchased upon the prior order was not of the same quality as paper previously supplied and that such paper had damaged the buyer’s leather. These specifications made no mention that the paper included in order 2022 did not comply with the implied warranty. The language of a pleading should set forth with reasonable clarity its essential nature, so that one may understand whether it sets forth a cause of action or a defence. It is .not enough that, reading between the lines, there may be found lurking, more by suggestion, hint or implication than by a direct, plain and categorical allegation, some semblance of a cause of action or a defence. Lewis v. Russell, 304 Mass. 41, and cases cited. The parties are commonly held to be bound by their specifications. The buyer was precluded from raising this point. Commonwealth v. Giles, 1 Gray, 466, 469. Corsick v. Boston Elevated Railway, 218 Mass.
But if we assume in favor of the buyer that it was asserting in the specifications that it did not accept the paper because from previous experience it was justified in believing that this lot too did not correspond with the implied warranty, yet there was no error in finding for the sellers in the absence of evidence showing that the goods sold did not comply with this warranty. In the first place, a breach of warranty by a seller in one transaction is not alone sufficient ground for the buyer to rescind a second sale which is independent and separate from the first sale. Turner v. Rogers, 121 Mass. 12. Hanson & Parker, Ltd. v. Wittenberg, 205 Mass. 319. Bresky v. Rosenberg, 256 Mass. 66. Atlantic Building Supply Co. v. Vulcanite Portland Cement Co. 203 N. Y. 133. Lace Selling Co. v. Shapiro, 249 N. Y. 68. Hambleton v. U. Aja Granite Co. 95 Vt. 295. Cases giving the right of rescission on account of the failure to deliver or pay for instalments when due, or where the goods comprising an instalment do not comply with the contract, are not applicable. A breach of a single contract might justify the other party in refusing further to perform. Dudley v. Wye, 230 Mass. 350. Agoos Kid Co. Inc. v. Blumenthal Import Corp. 282 Mass. 1. That is not the situation here. In the next place, the sellers could recover the price upon an account annexed for goods bargained and sold, if, as the judge found, the title had passed and nothing remained to be done except the payment of the price. Morse v. Sherman, 106 Mass. 430. Frazier v. Simmons, 139 Mass. 531. Mitchell v. Le Clair, 165 Mass. 308. Dalton v. American Ammonia Co. 236 Mass. 105. Flesher v. Handler, 303 Mass. 482.
The buyer, who had set up breach of warranty in its answer in the action brought by the sellers, also brought a cross action to recover damages for injury to its leather and for the expense incurred by reason of the fact that, having refused to accept the goods covered by order 2022 because of the defective goods furnished under order 3062, it was required to pay more for paper than the price it would
There was no error in granting the sellers’ nineteenth request that the buyer, not having examined any of the paper to be shipped under order 2022, was not justified in refusing to accept the paper on the assumption that it was defective; and in denying the buyer’s request 9(b) that, because some of the paper shipped under order 3062 did not correspond with the order, the buyer was justified in refusing to accept delivery under order 2022. This last request could not be given for the further reason that it contained a reference to a particular warranty which the judge found had not been made. Farina v. Vitti, 282 Mass. 532, 539. Freeman v. Crowell & Thurlow, Inc. 296 Mass. 514, 518. Gibbons v. Denoncourt, 297 Mass. 448, 453.
The judge found that the buyer discovered in the spring of 1936 that the sandpaper furnished under order 3062 was scratching its leather because the cutting surface of the paper was not reasonably uniform, and that the notice given to the sellers in October, 1936, did not assert any violation of the legal rights of the buyer. These findings embraced the matters covered in the thirteenth and eighteenth requests for rulings made by the sellers in the cross action.
The remaining exception to the denial of a request of the buyer made in each case, for a ruling that it was entitled to prevail, calls for no discussion in view of what has already been said.
Exceptions overruled.
The defendant “ pleaded general denial and breach of warranty.”— Reporter.
These requests for rulings were as follows: “13. Unless the plaintiff notified the defendants within a reasonable time after it knew or should have known of the alleged breach of warranty, and unless said notice referred to the particular sale or order claimed to be defective, fairly advised the sellers of the nature of the defects and asserted a violation of its legal rights, the