Boston Consol. Gas Co. v. Folsom

• Decision Date: 10 March 1921
• Citation: 130 N.E. 197,237 Mass. 565
• Parties: BOSTON CONSOL. GAS CO. v. FOLSOM. FOLSOM v. BOSTON CONSOL. GAS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 565

130 N.E. 197

BOSTON CONSOL. GAS CO.

v.FOLSOM.

FOLSOM

v.BOSTON CONSOL. GAS CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 10, 1921.

Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.

Actions by the Boston Consolidated Gas company against Francis B. W. Folsom, and by Francis B. W. Folsom against the Boston Consolidated Gas Company, resulting in directed verdict for defendant company in the second action, and Folsom excepts. Exceptions overruled.Gaston, Snow, Saltonstall & Hunt and Rupert L. Mapplebeck, all of Boston, for Boston Consol. Gas Co.

Arthur Berenson, of Boston, for Folsom.

CROSBY, J.

The first action is in contract; under the first and second counts the plaintiff seeks to recover a balance of $275 for the installation of a gas fired boiler; the third and fourth counts allege that the defendant owes the plaintiff for gas furnished to him. The second action is in tort, in which, in substance, the plaintiff alleges that he was induced to enter into a contract for the installation of the boiler, by reason of the representation made to him by the defendant's agent that the cost of heating his house therewith would be reasonable; that he relied on this representation, and that it was false. The cases were tried together and at the close of the evidence the judge directed a verdict for the defendant in the second action.

In the first action the defendant offered evidence of conversations had between himself and the plaintiff's agent and certain letters written by the parties respecting representations made by the plaintiff before the written agreement was signed. This evidence was rightly excluded. The written agreement shows on its face that it is complete and unambiguous. It cannot be varied or controlled by parol evidence. It merged all previous negotiations and stipulations whether oral or written, and cannot be altered by an earlier or contemporaneous warranty respecting the cost of operation of the boiler, as the defendant contends. Frost v. Blanchard, 97 Mass. 155;Neale v. American Electric Vehicle Co., 186 Mass. 303, 308, 71 N. E. 566.

[3][4] No express warranty appears in the contract, and none can be imported into it by implication, by the introduction of parol evidence; accordingly the exceptions to the judge's charge cannot be sustained. Lamb v. Crafts, 12 Metc. 353, 355;Will M. Kinnard Co. v. Cutter Tower Co., 159 Mass. 391, 393, 34 N. E. 460; Neale v. American Electric Vehicle Co., supra; Glackin v. Bennett, 226 Mass. 316, 115 N. E. 490. If a warranty such as the defendant claims were intended it should have been inserted in the contract. The evidence shows that the defendant obtained exactly what he contracted for, namely, a gas fired steam boiler, installed and equipped as the contract provided. There was no stipulation in the agreement that it could be operated economically, or would furnish any definite amount of heat, or that it could be operated for a fixed sum. Nor was there an implied warranty that it was fitted and suitable for the purpose for which it was installed. There was no evidence to show that the defendant was induced to enter into the agreement by any false representations of the plaintiff or its servants or agents: the representations relied on by the defendant at most were only expressions of opinion, judgment or estimate, upon which he cannot rely as a ground for rescission of the contract. Hedden v. Griffin, 136 Mass. 229, 231,49 Am. Rep. 25;Kimball v. Bangs, 144 Mass. 321, 324, 11 N. E. 113;Dawe v. Morris, 149 Mass. 188, 21 N. E. 313,4 L. R. A. 158, 14 Am. St. Rep. 404;Harvey v. Squire, 217 Mass. 411, 415, 105 N. E. 355. If it be assumed in favor of the defendant but without so deciding that under any circumstances the Sales Act (St. 1908, c. 237) could be held to apply to the contract in question it nevertheless was for the sale of ‘a four section Kane gas fired steam boiler’ and hence was a sale of a specified article under its patent or other trade name. As to such a sale under section 15, clause 4, of the act, there is no implied warranty as to its fitness for any particular purpose. See Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, at page 95, 120 N. E. 225, 5 A. L. R. 242. The cases where under section 15 of the act a warranty may be implied as to the quality or fitness for a particular purpose...