284 Mass. 446 | Mass. | 1933
This is an action of contract, brought by a manufacturer of cardboard boxes against a wholesale dealer in cardboard, to recover damages for the breach of a warranty, in a sale by the defendant to the plaintiff of a car load of cardboard for the price of $1,223.94, that the goods were of merchantable quality and fit for the purpose of making into boxes for the packing and sale at retail of candy. The case was referred to an auditor, whose findings were to be final as to all questions of fact, and whose final report was filed on July 11, 1931, before Rule 89 of the Superior Court (1932) took effect. His report was in effect a case stated. Merrimac Chemical Co. v. Moore, 279
The exceptions taken by each party to the order for judgment present all the questions in the case. It is unnecessary to discuss the requests for rulings. The defendant knew that the plaintiff’s business was principally the manufacture of candy boxes, and that the probable use of the car load in question was as material for such boxes. The defendant’s method of doing business was to obtain orders from customers and then to buy cardboard from the mills with which to fill the orders. The defendant had direct contractual relation with the mills, and could insist upon' the fitness of the cardboard for the intended use. The plaintiff had no rights against the mills, and could rely on no one except the defendant. If the defendant were to take no care or responsibility, it is hard to see why the plaintiff should deal with it, for the plaintiff could buy from the mills at the same price. The Continental Mills, from which the cardboard was to come, were in New Jersey, and the plaintiff had not been using their cardboard for some time. G. L. (Ter. Ed.) c. 106, § 17 (1), provides: “Where the buyer, expressly or by implication, ’makes known to the seller the particular purpose for which the
The finding of the trial judge, upon the facts found by the auditor, that there was a breach of the warranty of fitness for the contemplated use, was amply justified. It was found that the cardboard appeared satisfactory when delivered, but because of a vegetable growth in the water used by the mills in New Jersey where the cardboard was made, an oily substance was deposited in the cardboard, which gradually became very offensive because of a strong and disagreeable odor which it gave forth. Obviously such cardboard was unfit for the making of candy boxes.
The cardboard arrived from the mills on October 8, 1924. On October 15, 1924, the plaintiff paid for it, in ignorance of its condition, although before that date, because of a complaint from one Daley about a similar shipment, the defendant suspected that there might be trouble with the lot in question. The plaintiff proceeded to use the cardboard in the. manufacture of candy boxes. The auditor finds, justifiably so far as appears, that the first definite knowledge of the condition of the cardboard came to the
After it became clear that the goods were unfit, the defendant took back the uncut part, and repaid the plaintiff proportionately. The increased cost to the plaintiff of replacing the unfit cardboard taken back by the defendant with good material at a higher price, amounting to $78.38, was properly allowed as an element of damages. It could be found to represent the difference in market value between the goods as they were and the goods as they should have been. The allowance was necessary in order to give the plaintiff the benefit of its bargain.
The trial judge allowed as damages only the three items already mentioned, a total of $3,419.15, and ordered judgment for the plaintiff for that sum, with interest from December 20, 1924, the date of the writ. Although the plaintiff’s claim was for unliquidated damages, it was proper to include interest in the damages, at least from the date of the writ, to compensate for the delay in obtaining redress. New York Bank Note Co. v. Kidder Press Manuf. Co. 192 Mass. 391, 406. Childs v. Krey, 199 Mass. 352, 358. McGrimley v. Hill, 232 Mass. 462. H. D. Foss & Co. Inc. v. Whidden, 254 Mass. 146, 151, 152. Cochrane v. Forbes, 267 Mass. 417, 420. Hawkins v. Jamrog, 277 Mass. 540, 545. Barrett Co. v. Panther Rubber Manuf. Co. 24 Fed. Rep. (2d) 329, 337, 338. In Agoos Kid Co. Inc. v. Blumenthal Import Corp. 282 Mass. 1, the original papers show that interest from a time antedating the suit was included
The plaintiff claims damages for loss of good will resulting from the furnishing by the plaintiff to its largest customer of candy boxes made of the offensive material. The auditor found that the plaintiff’s business with that customer, which had averaged $21,000 a year with a net profit of $2,100, ceased entirely, although but for that incident it probably would have continued. Loss of good will has been recognized as an element of damages flowing from the use of unfit material received from one who warranted it to be fit. Hawkins v. Jamrog, 277 Mass. 540. Swain v. Schieffelin, 134 N. Y. 471. Cramerton Mills, Inc. v. Nathan & Cohen Co. Inc. 231 App. Div. (N. Y.) 28. Barrett Co. v. Panther Rubber Manuf. Co. 24 Fed. Rep. (2d) 329. Elkus Co. v. Voeckel, 27 Ariz. 332. Cointat v. Myham & Son, [1913] 2 K. B. 220, reversed on other grounds, 30 T. L. R. 282; 110 L. T. Rep. 749. Contra, Moran v. Standard Oil Co. 211 N. Y. 187, 195; Armstrong Rubber Co. Inc. v. Griffith, 43 Fed. Rep. (2d) 689. In the present case, however, the auditor found no evidence of decrease in the volume of the plaintiff’s business, and no evidence that the plaintiff’s factory did not continue to operate at its full capacity. Therefore the auditor and the judge were right in ruling that the loss of the customer was not shown to be an injury to the plaintiff.
The judge disallowed the plaintiff’s claim for $1,426.06 paid by the plaintiff to certain of its customers in settlement for candy which spoiled when packed in boxes made of the unfit material, ruling that the payment was not shown by the auditor’s report to have been made in con
The result is, that the defendant’s appeal is dismissed,
So ordered.