FE Atteaux & Co. v. Pancreon Mfg. Corporation, 2120-2121.

• Decision Date: 02 December 1927
• Docket Number: No. 2120-2121.,2120-2121.
• Citation: 22 F.2d 749
• Parties: F. E. ATTEAUX & CO., Inc., v. PANCREON MFG. CORPORATION (two cases).
• Court: U.S. Court of Appeals — First Circuit

22 F.2d 749 (1927)

F. E. ATTEAUX & CO., Inc., v. PANCREON MFG. CORPORATION (two cases).

Nos. 2120-2121.

Circuit Court of Appeals, First Circuit.

December 2, 1927.

Francis M. Carroll, of Boston, Mass. (Sidney R. Wrightington, of Boston, Mass., on the brief), for plaintiff in error.

Lee M. Friedman, of Boston, Mass. (Paul D. Turner, Frank L. Kozol and Friedman, Atherton, King & Turner, all of Boston, Mass., on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

These cross-suits grow out of a controversy over a contract of sale of 2,000 barrels of pancreon to F. E. Atteaux & Co. In No. 2120, in which the Pancreon Company is the plaintiff, the declaration is in two counts: (1) For $3,964.80 for 150 barrels sold and delivered; (2) for breach of a contract to take delivery of 865 barrels, containing 165 pounds each, at 15 cents per pound.

In its answer and cross-suit the Atteaux Company pleaded misrepresentations and breach of express and implied warranty as to the efficiency of pancreon as a bate in the tanning of all kinds of skins.

The Atteaux Company is a manufacturer and importer of dyestuffs, chemicals, and tanning materials. Atteaux, its president and chief stockholder, had, at the time of the trial, been in the business for 48 years; he had agencies or branches in Boston, Gloversville, N. Y., Wilmington, Del., and Newark, N. J.

Pancreon is a chemical compound intended as a desirable substitute for noisome natural materials, formerly used to perform, in tanning, a process called bating, unnecessary here to describe in detail. Prior to 1922, another chemical compound for the same general purpose was on the market, called oropon. Early in 1922 the Pancreon Company brought its chemical bate, pancreon, to the attention of the Atteaux Company, and submitted a sample which Atteaux caused to be tested in his laboratory, and under date of March 14, 1922, wrote: "Will say that the 10 pounds of pancreon reached us safely, and we have made a laboratory test and believe the product to be satisfactory. If price is right, we can undoubtedly sell large quantities of the same. Kindly give us your lowest price, delivered in Boston in quantities."

Later in 1922, Atteaux bought 17 barrels of pancreon and put it "out among the trade to have them test it out." The result was good. On March 3, 1923, Atteaux made a contract for the purchase of 2,000 barrels of pancreon "at 15 cents a pound, cost and freight Gloversville, N. Y., Philadelphia, Pa., Newark, N. J., and Wilmington, Del."; shipments monthly as required, but entire amount to be taken within a year.

At the end of the year only 935 barrels had been delivered. The tanning business was much depressed. There was controversy as to whether the pancreon would bate all kinds of skins, or was efficient only for skins intended for gloves. The price of oropon was cut, and sharp competition resulted. But, after correspondence and negotiations, the parties, on February 18, 1924, made another or supplementary contract, which recited that, in consideration of the cancellation of the contract for 2,000 barrels, under which 1,065 barrels remained undelivered at the end of the contract period, the Atteaux Company agreed to accept delivery of 200 barrels per month in March, May, June, July, and August, and 65 barrels in September, 1924, f. o. b. Boston, Gloversville, or Philadelphia, the price being 15 cents per pound. Under this agreement 200 barrels were delivered in March, but only 50 paid for. Count 1 of the Pancreon Company's declaration is to recover the purchase price of 150 barrels. A little later the Atteaux Company refused to accept any of the remaining 865 barrels. The Pancreon Company's suit was brought on August 1, 1924, and the Atteaux Company's cross-suit on March 26, 1925.

After a trial of considerable length (the record is over 200 pages), involved mainly questions of fact, as to the representations made, oral and written, the Atteaux Company's reliance thereon, and the actual efficiency of pancreon in bating all kinds of skins, and not merely skins intended for gloves, the court ruled that in the Atteaux Company's cross-suit there was no evidence to support counts 2 and 3 (involving breach of implied warranty and fraudulent representations), and submitted both suits to the jury on all questions of fact concerning the express warranty.

On damages, the court instructed the jury that, if they found for the Pancreon Company, they should return a verdict for $3,964.60 under the first count, and under the second count for the amount of 865 barrels, of 165 pounds each, at 15 cents a pound.

The jury found for the Pancreon Company under both counts of its declaration, with interest from the date of the writ, returning a verdict of $27,394.17. On the Atteaux Company's cross-action the jury returned no verdict, because, as the foreman reported, "the jurors supposed the first action settled the second action." Thereupon the court ordered a verdict on count 1 of the cross-action (express warranty), and no exception was taken to this ruling.

This disposes of the cross-action, provided the court's ruling that there was no evidence for the jury under counts 2 and 3 was correct. They were correct.

There was no implied warranty because (besides other reasons) pancreon was sold under its trade-name, and the case in that aspect falls under G. L. c. 106, § 17 (4):

"In the case of a contract to sell or a sale of a specified article under its patent or other trade-name, there is no implied warranty as to its fitness for any particular purpose."

This disposes of count 2.

The court was also right in ruling that there was no evidence to support count 3, in which the Atteaux Company alleged fraud in the nature of deceit. The case is in that regard too plain to call for any lengthy statement or analysis of the evidence. It is enough to note that the representations argued as fraudulent were made by the Pancreon Company's treasurer, who was known by Atteaux not to be a practical tanner, and whose opinions were clearly not accepted as of any weight. Moreover, in their very nature, the statements made by the treasurer were but trade talk, or a report of the...