Rosenthal & Doucette v. United Last Co.

• Decision Date: 06 May 1940
• Docket Number: No. 501.,501.
• Citation: 33 F. Supp. 213
• Parties: ROSENTHAL & DOUCETTE, Inc., v. UNITED LAST CO.
• Court: U.S. District Court — District of Massachusetts

33 F. Supp. 213

ROSENTHAL & DOUCETTE, Inc., v. UNITED LAST CO.

No. 501.

District Court, D. Massachusetts.

May 6, 1940.

Kobrin & Wolf and Aaron Kobrin, all of Boston, Mass., for plaintiff.

Choate, Hall & Stewart and John M. Hall, all of Boston, Mass., for defendant.

McLELLAN, District Judge.

This action between citizens of different States was commenced in the State Court, and removed to this Court by the defendant. In Massachusetts, there are three kinds of personal actions, contract, tort and replevin. In accordance with permissible State practice, this action is stated to be in contract or tort and at the beginning of the declaration appears the following:

"The plaintiff being uncertain as to whether its cause of action against the defendant is in contract or in tort sets forth herein its cause of action against the defendant in four counts: Counts One, Two and Three in contract and Count Four in tort, all of said counts being for one and the same cause of action."

The first count is founded upon a breach of an express warranty. The second and third counts are based upon breaches of implied warranties. All three, as heretofore indicated, are in contract. The fourth count, stated to be in tort, reads:

"And the plaintiff says that it is engaged in the business of manufacturing women's novelty shoes; that the sale of its shoes is dependent upon the fit, style, quality and appearance of the shoes it manufactures; that the defendant is engaged in the business of manufacturing lasts which are used in the manufacture of shoes; that the defendant has been engaged in said business of manufacturing and selling lasts for a great number of years and hold itself out as a competent manufacturer of lasts of long experience; that in 1936 and on divers other days the plaintiff ordered and purchased from the defendant, its agents or servants, certain lasts to be used by the plaintiff in manufacturing its shoes; that when the plaintiff manufactured and sold shoes, using said lasts in the process, it was found that after said shoes reached the customers of the plaintiff said shoes did not fit; and said shoes did not fit by reason of the negligence and carelessness of the defendant, its agents or servants, in manufacturing said lasts improperly and defectively; that said improper and defective manufacture of said lasts first became known to the plaintiff when its customers complained that its shoes made on said lasts would not fit; that due and sufficient notice...