254 Mass. 411 | Mass. | 1926
This action, begun on January 5, 1920, in contract, was amended by leave of court on April 13, 1922, into an action of contract or tort, with a count in tort in the nature of an action of deceit. On May 1,1922, the case was referred to an auditor, who filed the report incorporated in the bill of exceptions on July 16, 1923.
The contract in full is set out in the report. In substance, the first, second, third and fourth clauses thereof provide for the sale at named prices of “The Edison Talking machine stock ‘as is’ ”; of “The Cowan Machine stock ‘as is’ of “The Supertone and Burrows talking machines ‘as is’ and of “The Victor Talking Machine stock ‘as is.’ ” The fifth, sixth and seventh clauses provide for the sale at named prices of “Victor Records,” “Edison” records and “Sundry and Accessory stock.” “The total value of the above stock and records and accessories to be . . . ($19,303.44), subject only to such exceptions as mentioned herein.” By the terms of the contract the defendant assigned to the plaintiff “all its rights and interests under its contract with the Edison and Victor Talking Machine Companies, inasmuch as its rights under this contract are transferable or assignable; and also the good-will of its talking machine business, but expressly reserves to itself to the use of the name of American Piano Company or Chickering and Sons, and the said Mrs. Etta Reinherz agrees not to use in any way the name or any part of the name of the said American Piano Company, Chickering and Sons Division. ’ ’ The contract further provided that the stock, records and accessories “shall be already for delivery and accepted on or before the first day of September, A.D. 1919. It is hereby agreed that the delivery is to be made at 169 Tremont Street, the place of business of the said American Piano Company, Chickering and Sons Division.”
The auditor found and sets out a construction put upon the phrase “as is,” found in clauses one, two, three and four of the agreement, above referred to, made by one George R. Manee, who acted for the defendant with full authority to make the sale and any part of the sale, before the signing of the agreement, at the request of the plaintiff; and further found that she relied upon the explanation and executed the
After the close of the evidence, the plaintiff, subject to the exception of the defendant, was allowed further to amend her declaration in order to comply with the rule of Parker v. Moulton, 114 Mass. 99. The allowance of the amendment was entirely within the discretion of the court. G. L. c. 231, § 51. Pizer v. Hunt, 250 Mass. 498.
The defendant moved that a verdict be directed on each count. The motion was denied and the defendant excepted. The case was submitted to the jury on issues framed by the trial judge; and after the jury had answered the issues subject to the defendant’s exception, the judge directed a verdict for the plaintiff on the first count for $987.30 and interest, a total of $1,254.91; and a verdict for the plaintiff on the second count in the sum of $7,359.16.
From the testimony of witnesses at the trial, and from the auditor’s report, the jury would have been warranted in finding that the defendant, in July, 1919, conducted a branch retail piano store at 169 Tremont Street, Boston, under the style of Chickering and Sons; that the business was divided into several departments, among others a phonograph department, which purchased at wholesale and sold at retail phonographs, talking machines, talking machine records and accessories; that one George R. Manee was employed as manager, and as such had full authority to make
At this juncture, the plaintiff learned from outside sources that the talking machine department of Chickering and Sons was for sale, and in July, 1919, went to the store of the defendant to make inquiries upon the subject. She there saw the manager, Manee, and had a conversation with him. He told her that the phonograph business was for sale, that the stock was worth around $20,000 and that the rights were worth more than the stock. On August 1, 1919, she again saw Manee at the- store; she told him she had been in the manufacturing business, a big business, but she knew nothing about the phonograph business; she had been through sorrow and lost her only son and wanted to find an easier business. Manee “told her that the phonograph business would be a fine business for her, and that she need not fear because she was not experienced. He said, ‘ We will give you all possible assistance in the business. The Chickering people are very responsible people and they will not take any advantage of you.’ ” He said there were a good many people
The plaintiff brought her brother and his partner, one Isaacs, who were interested in a talking machine business in Scranton, Pennsylvania, expressly to advise in relation to her purchase. The auditor found that a few days later, at the hotel Touraine, the plaintiff and Manee had the following conversation:
"Mrs. Reinherz: 'I am very much worried, very nervous. I do not understand this business, and I am putting into it the savings of a lifetime.’
"Mr. Manee: 'You need not worry. You have a beautiful business. It is a wonderful business. Before Christmas we did not have an instrument left in the place, and every instrument has come in since.’ ”
Before the agreement was signed, the following conversation took place between the plaintiff and Manee:
"Mrs. Reinherz: 'I am very much afraid of purchasing Cowan machines because they have a very poor reputation among people who know them, and very few people know about that phonograph.’
'' Mr. Manee: ' That phonograph is better than the Victor. The wood is real mahogany. It has a wonderful motor, and it is made for the Chickering people only.’ ”
The auditor finds that the plaintiff examined only the goods in the show-room of the defendant’s store — a few pieces; that she was not familiar with such merchandise; that "On the day the ■ agreement’ was signed,” before the agreement was signed, Manee told her "the goods were up in crates in the warehouse, and that they would be opened for her examination as they were delivered to her, that they were
On August 5,1919, immediately before the agreement was signed, Manee said to the plaintiff: “There is nothing the matter with the Cowans. I assure you that you will never have a bit of trouble with them. They are not very well known here in the East, and we were preparing an extensive advertising campaign on them .... We have had a great success with them .... All the machines we have here have come in since the first of January. As a matter of fact, the great proportion of it is still in the crates as we received it.”
The auditor in substance found that the goods purchased, when delivered, were in bad and damaged condition — not one instrument complete; that not a single Cowan machine would function properly; that the Cowan machines delivered were not merchantable and saleable machines; that they were purchased from a bankrupt concern in Chicago and delivered to the defendant in October and November 1918, and were not made specially for Chickering and Sons division; that they were not equal to but were inferior to the Victor machines; that the motor of the Cowan machine was inferior in quality and material and in its construction; that one of the Edison machines delivered to the plaintiff was without a motor, lacked essential parts, and its cabinet was scratched and needed refinishing; that several other Edison machines were without parts, and the cabinets were scratched and gouged; that they were not saleable, and to be saleable required a good deal of time and work to be spent on them. He specifically found that the plaintiff was induced to buy, and did buy, the phonograph business of the defendant by means of false and fraudulent representations by the defendant to her; that she did not make an examination of the goods sold to her sufficient to enable her to know the true character and condition of such goods and merchandise, and
There was no error in the refusal of the judge to direct a verdict for the defendant on the first count; nor in the submission to the jury of issue numbered 1. There being nothing in the contract by which it could be determined definitely what was intended by the parties by the sale to the plaintiff' by the defendant of “all its rights and interests under its contract with the Edison and Victor Talking Machine Companies,” it was proper for the plaintiff to put before the jury all circumstances which would enable them to determine as a fact the measure of the right, if any, of the defendant to receive and assign Red Seal requisition records to the plaintiff, and whether it was intended by the defendant, as rightly understood by the plaintiff, that the defendant intended by the terms of its contract to transfer its rights to receive the Red Seal records to the plaintiff. It is admitted that no Red Seal requisition records were delivered; and there was evidence that their value was the sum which the jury were directed to find, following -upon their determination that the agreement included “the privilege of receiving records under the so called Red Seal requisition.” The submission of the issue numbered 1 to the jury was justified by Smith v. Vose & Sons Piano Co. 194 Mass. 193,200, and Way v. Greer, 196 Mass. 237, 246. The exceptions saved to the refusal to direct a verdict for the defendant, to the submission to the jury of issue numbered 1, and to the direction of a verdict for the plaintiff, must be overruled.
The refusal to direct a verdict on the second count was right, and the exception saved thereto must be overruled. The contention of the defendant is unsound, that the issue numbered “2. Is or is not the defendant hable to the plaintiff for false and fraudulent representations that the merchandise contracted to be sold was of the value of $19,303.44?” was improperly submitted to the jury because of G. L. c. 106,
§ 14, which reads: “Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to
Before the adoption of St. 1908, c. 237 (now G. L. c. 106) an action of deceit would lie for breach of warranty. Norton v. Doherty, 3 Gray, 372, 373. Farrell v. Manhattan Market Co. 198 Mass. 271, 274.
We think the provision of the statute as to affirmation of the value of goods sold should be limited to actions sounding in contract; and should not, by construction, be extended to limit or impair rights as they existed before the passage of the statute, to recover in an action of tort damages suffered by reason of reckless or fraudulent misstatements of fact relating to value. Chatham Furnace Co. v. Moffatt, 147 Mass. 403. Andrews v. Jackson, 168 Mass. 266,269, explaining Deming v. Darling, 148 Mass. 504. Lynch v. Murphy, 171 Mass. 307. Rosenbush v. Learned, 242 Mass. 297, 300. It follows that the exception of the defendant to the submission to the jury of issue numbered 2, as also the exception to the submission to the jury of issue numbered 3, which determined the loss to the plaintiff as subsequently found by the jury, must be overruled.
The defendant contends that the issue numbered “4. Is or is not the defendant liable to the plaintiff for false and fraudulent representations that the Cowan Machines were better than the Victor Machines?” and the issue number 5, which fixes the difference in value between the Cowan machines and the Victor machines, were improperly submitted for the reason (a) “as is” was in the contract, and (b) the representation was merely trade puffing. The meaning of the phrase “as is” may vary with the conditions and circumstances of its use; and, where these are not determined, the intention of the parties using it is to be determined by the jury under proper instructions. Without serious doubt, parties to a contract may agree that the terms of their agreement shall be construed to embody within its four corners every material element, and that no misrepresentation of fact, other than a false representation of the nature of the
The contention in reference to (b) is likewise unsound. To say of a thing that it is "better” than another thing manifestly may be an expression of opinion, or a statement of fact. Whether it be the one or the other may depend in a given case upon the degree of the representor’s knowledge of the thing described, as well as upon the ignorance or want of knowledge of the person who is induced to rely upon the misstatement, if it be one. Such a statement presents a question for the jury; this was done in the case at bar with appropriate instructions. The exceptions saved to the submission of the fourth issue, and the subsidiary issue numbered 5, are overruled.
The exception saved to the issue numbered "6. Is or is not the defendant liable to the plaintiff for false and fraudulent representations that the Cowan machines were perfect in every way,” and to the subsidiary question and answer as to the difference in value between the machines contracted to be sold as perfect and those in the condition they were delivered, must be overruled. For reasons above stated, the evidence to support the issue did not as a matter of law contradict the written agreement, where it is stated that the machines were sold "as is.”
The defendant’s motions to strike out many parts of the auditor’s report and its motion to discharge the auditor’s
We do not think any useful end will be subserved by a discussion in detail of the substantiality of any one of the remaining exceptions. However, we have considered them all and do not think the defendant is entitled to a new trial because of material errors shown by them.
The ruling and direction that the plaintiff was not entitled to receive damages because of false and fraudulent representations respecting the value of the good will was right. The affirmation was manifestly a declaration of opinion, or, if not such, was within the protection of representations classified as dealer’s talk. Deming v. Darling, supra. No sensible person could understand that the value of the good will sold, with its limitations, was other than problematical.
It results the plaintiff’s and the defendant’s exceptions must be overruled.
So ordered.