Depasquale v. Bradlee & Mcintosh Co.

• Decision Date: 02 March 1927
• Citation: Depasquale v. Bradlee & Mcintosh Co., 258 Mass. 483 (Mass. 1927)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JOSEPH G. DePASQUALE & another v. BRADLEE & McINTOSH Co.

258 Mass. 483

JOSEPH G. DePASQUALE & another v. BRADLEE & McINTOSH Co.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1927

January 11, 12 1927.

Present: RUGG, C.

J., CROSBY, PIERCE WAIT, & SANDERSON, JJ.

Deceit. Practice Civil, Exceptions, Verdict with leave reserved under G.

L.c. 231, Section 120. Evidence, Extrinsic affecting writings. Contract, In writing.

An action of tort for deceit cannot be maintained by the buyer of sugar against the seller where it appears that the sale was in accordance with a contract in writing signed by the plaintiff, that the sugar was received, paid for and placed in a warehouse by the plaintiff, and that the plaintiff relied as the basis of the action upon representations, alleged to have been made by the defendant as an inducement to the contract and to have been false, that the sugar would satisfy a requirement as to quality which was not set out in the contract; and there is no contention by the plaintiff that the contract was executed by him by reason of any fraud or misstatement as to the nature of the contract, or of any fraud or misstatement as to the meaning of the executed instrument.

A breach of implied warranty of fitness in a sale does not give rise to an action of tort for deceit.

At the trial of an action of contract or tort relating to a sale of sugar, the trial judge, subject to an exception by the defendant erroneously admitted evidence which tended to vary the terms of a contract of sale in writing which the plaintiff did not contend was executed by him by reason of any fraud or misstatement as to the nature of the contract, or of any fraud or misstatement as to the meaning of the executed instrument.

At the close of the evidence, the plaintiff elected to go to the jury only on counts in tort for deceit in representing the sugar to be of a quality which was not set out in the contract. A verdict was received and recorded with leave reserved under G.L.c. 231, Section 120, and later, in accordance with such leave, a verdict was entered for the defendant by order of the judge, and the plaintiff alleged exceptions.

Held, that, although the case was before this court on exception by the plaintiff only, it was open to the defendant to contend that the evidence, although admitted, was of no effect to vary the contract, and that the plaintiff could not maintain the action of tort for deceit by alleging that warranties omitted from the valid contract in writing were fraudulent misrepresentations.

CONTRACT OR TORT, with a declaration described in the opinion. Writ dated October 6, 1920.

In the Superior Court, the action was tried before Cox, J. Material evidence is described in the opinion. As stated in the opinion, the plaintiffs elected at the close of the evidence to proceed only on the counts in tort. The jury found for the plaintiffs in the sum of $9,600.50. The trial judge, upon the receipt but before the recording of the verdict, reserved leave under G.L.c. 231, Section 120, to enter a verdict for the defendant, and thereafter, upon motion by the defendant and by order of the judge, a verdict was entered for the defendant. The plaintiffs alleged exceptions.

W.A. Murray, for the plaintiffs. J.P. Carr, for the defendant.

PIERCE, J. This action arises out of the sale by the defendant of two lots of sugar to the plaintiffs, under two written contracts, dated respectively May 4 and May 6, 1920. The lot sold under the "Memorandum of Sale" dated May 4, 1920, was called in the "Memorandum," "American Washed Sugar"; the amount was five hundred bags, each bag of about one hundred pounds net. The lot sold under the "memorandum of sale" dated May 6, 1920, was called in the "memorandum" "Foreign Refined Granulated Sugar"; the amount of such sugar was two hundred fifty bags, each bag weighing net approximately two hundred twenty-four pounds.

The Central American, or washed sugar, arrived in New York on the steamship "Cristobal" on July 26, 1920. The defendant notified the plaintiffs when the sugar arrived and the plaintiffs ordered it sent to Worcester. Irrevocable letters of credit issued out of the Worcester Bank and Trust Company, under which payments were made to the defendant for these two lots of sugar against shipping documents. The "Foreign Refined" sugar arrived in New York on board the steamship "Sophle Frankel" on July 8, 1920, and by the direction of the defendant was consigned to the order of the State Street Trust Company, and by the plaintiffs ordered to be shipped to a warehouse at Worcester. The "Washed Sugar" arrived in Worcester on August 10, 1920, the "Foreign Refined" on August 11, 1920. The bank paid the freight, ordered the sugar warehoused and notified the plaintiffs to that effect.

By each contract the sugar was sold "duty paid, ex ship New York." No inspection of either lot after its arrival at the Worcester Cold Storage and Warehouse Company on August 10 and 11, 1920, respectively, was made by the plaintiffs until September 28, 1920. On that date one of the plaintiffs inspected the sugar, and on September 30 and on October 1 wrote the defendant to the effect that the Central American Washed Sugar was not like the sample given at the time of the making of the contract; that the Foreign Refined granulated sugar was not as represented; that the sugar was valueless; that the plaintiffs held it to the order of the defendant; and that they rescinded both shipments and "hereby tender to you all of the sugar which you sent us and which is now deposited in the Worcester Cold Storage and Warehouse Co." To these letters the defendant replied, under date of October 4, 1920, as follows: "Referring to your letter of September 30th, please be advised that the Central American Washed and the Foreign Refined sugars were delivered in accordance with contract."

At the close of the evidence the trial judge ordered the plaintiffs to elect between counts one, three, four, and six, based on alleged breaches of the contracts, and counts two and five, based on alleged false and fraudulent representations. The plaintiffs waived the counts in contract, and elected to stand on counts two and five. The jury returned a verdict for the plaintiffs in the sum of $9,600.50. After the verdict was received, but before it was approved and recorded, the judge reserved leave, with the...