S. F. Bowser & Co., Inc. v. Independent Dye House, Inc.

• Decision Date: 30 June 1931
• Citation: 276 Mass. 289
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: S. F. BOWSER & COMPANY, INCORPORATED, v. INDEPENDENT DYE HOUSE, INC.

276 Mass. 289

S. F. BOWSER & COMPANY, INCORPORATED, v. INDEPENDENT DYE HOUSE, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1931

May 18, 1931.

Present: CROSBY PIERCE, CARROLL, WAIT, & FIELD, JJ.

Contract Construction, In writing, Performance and breach. Sale Warranty. Sales Act. Practice, Civil, Ordering verdict. Evidence, Presumptions and burden of proof, Competency.

At the trial of an action for a balance alleged to be due on the purchase price called for by a contract in writing whereby the plaintiff agreed to furnish and instal in the plant of the defendant "1 Complete continuous white solvent circulating system for 8 washers," it appeared that the contract price was not paid in full, and the defendant denied that the plaintiff had furnished what the contract called for. The defendant introduced testimony of witnesses of experience that, in order to get "white solvent," it was necessary with the system, furnished to the defendant by the plaintiff "to take certain `batches' of solvent from time to time out of the solvent then circulating in the other parts of the system and purify it to a water white color, and during the time said batch is being purified, the remaining solvent then circulating through the system may or may not be so purified as to be water white"; and that therefore in their opinions the system was not a "continuous white solvent circulating system." Witnesses for the plaintiff testified that the plaintiff had performed the contract because the "practices in the dry cleaning industry did not call for, and manufacturers did not make, systems which produced water white solvent as an automatic part of the operation, but only by purifying certain parts of the solvent from time to time in `batches' according to the wishes and requirements of the owner of the particular system." The judge ordered a verdict for the plaintiff. Held, that

(1) The facts were in dispute and there was evidence warranting a finding for the defendant.

(2) The verdict for the plaintiff should not have been ordered.

The parties to a contract for the sale of goods may stipulate expressly that the contract covers all agreements between them, and such a stipulation, when made, in the absence of fraud should be held to prevent an implied term being read into the contract under G.L.c. 106, Section

17 (1), as well as any special agreement between the parties which is outside the terms of the contract in writing.

The contract in writing above described contained provisions "That this order shall not be countermanded; that it covers all agreements between parties hereto relative to this transaction, and that . . . [the plaintiff] shall not be bound by any representation or promise made by any agent relative to this transaction which is not embodied herein. . . . That the responsibility of . . . [the plaintiff] for loss or damage from any cause, is limited to the repairing or replacing of defective material and workmanship, manufactured by" him.

Held, that (1) Such provisions were inconsistent with the implied warranty described in cl. (1) of G.L.c. 106, Section 17, and prevented the raising of such implication under cl. (6);

(2) Evidence that the defendant made known to and informed the plaintiff of the particular purpose for which it required the system, and relied upon the plaintiff's experience, skill and judgment to supply a system adequate, suitable and proper to such purpose and conditions, properly was excluded.

CONTRACT, against Independent Dye House, Inc., with a declaration in three counts, the first count seeking recovery of a balance, alleged to be due, of the purchase price of "1 Complete continuous white solvent circulating system for 8 washers," according to the contract in writing described in the opinion; the second count seeking recovery in quantum meruit for the services and expenses of the plaintiff's chief engineer, who spent considerable time in Boston in an attempt to ascertain the cause of the appearance of yellow spots on articles of clothing which had been cleansed at the defendant's plant; and the third count seeking recovery for various charges for labor and material in servicing the system after its installation was completed. Writ dated June 22, 1928.

In the Superior Court, the action was tried before Gibbs, J. Material evidence is described in the opinion.

At the close of the evidence, the judge allowed a motion by the plaintiff that a verdict be ordered in its favor on the first count, and submitted the second and third counts to the jury, who found for the defendant thereon. The judge then reported the action for determination by this court stating that the only issues involved in the report related to the cause of action under the first count. The verdict for the plaintiff on the first count was in the sum of $6,440.

R.P. Boruchoff, for the defendant. M.C. Taylor, for the plaintiff.

PIERCE, J. This is an action of contract wherein the plaintiff, a manufacturer of many years' experience of systems or installations for the clarification of the solvent used in dry cleaning establishments, entered into a written contract with the defendant for the furnishing and installation by the plaintiff in the plant of the defendant of "1 Complete continuous white solvent circulating system for 8 washers, as shown on B Print E-6314." It was "agreed" at the trial "that the contract may be regarded as amended or modified by mutual agreement by substituting `blueprint 6358' for `blueprint 6314,' and no point is made of a variance, the pleadings [so] being treated for the purposes of the trial and of this report. . . ." The plaintiff in the first count of its declaration seeks to recover the unpaid balance of the contract price. The jury found for the defendant upon the second and third counts of the declaration and no issue arising during the trial of either of these counts is before this court.

The answer of the defendant to the first count "admits it made with the plaintiff the contract substantially as alleged in the declaration"; and "admits also the payment by it to the plaintiff as alleged in said first count," but "denies that the plaintiff has fully performed its contract." Passing further answer of the defendant which alleged facts in the nature of recoupment and which might be a possible basis of a cross action for damages, the defendant answered "that it made known to, and informed the plaintiff of the particular purpose for which it required the equipment, in question, to wit, for eight washers, shown to and described to the plaintiff; twelve to eighteen hours being required for washing. And the defendant relied upon the plaintiff's experience, skill and judgment to supply a system adequate, suitable and proper to such purpose and conditions. But the defendant says that the system which the plaintiff in fact supplied and installed was not one complete continuous white solvent circulating system for eight washers, which the plaintiff was bound by its contract to furnish and instal."

At the trial witnesses for the plaintiff testified that installation called for by the "blueprint 6358" was in fact made. A witness for the plaintiff testified that he installed the plaintiff's system and that he placed one connecting supply pipe underground across the middle of the room instead of around the wall at the end of the building, as shown by the blueprint; that this pipe was placed in a trench which was dug by the defendant's contractor; that this installation had to be done -- it made no difference whatever, it merely shortened the pipe. No evidence is reported to show an express assent to this departure from the blueprint, or any implied assent except as may be inferred from the facts stated in the above testimony.

"After the plaintiff's system was put in operation along with the other machinery in the defendant's plant, a large proportion of the garments which went through the plant were found on completion of processing to have yellow spots upon them." At the trial certain of the defendant's witnesses, having various degrees of experience with, and knowledge of, dry cleaning clarification systems, including the plaintiff's system, testified that in their opinions the system was not a "continuous white solvent circulating system"; that it was a continuous system that it was a circulating system; that...