Duralith Corp. v. Leonard

• Decision Date: 31 January 1931
• Citation: 174 N.E. 511,274 Mass. 397
• Parties: DURALITH CORPORATION v. LEONARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 397

174 N.E. 511

DURALITH CORPORATION

v.LEONARD.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 31, 1931.

Report from Municipal Court of Boston; Wilfred Bolster, Judge.

Action by the Duralith Corporation against P. Leonard. Finding was for plaintiff. From an order of the appellate division dismissing a report, defendant appeals.

Affirmed.

Guterman & Guterman and Samuel Berkett, all of Boston, for plaintiff.

James S. Ellis and Morris Horowitz, both of Boston, for defendant.

WAIT, J.

This is an appeal from an order of an appellate division dismissing a report of a trial judge who found for the plaintiff in an action for goods sold and delivered. The plaintiff claimed $360 as the price of one ton of ‘Duralith,’ ‘a wall texturing’ composition at $.18 a pound, which, as appeared in evidence, had been shipped to the defendant upon an order taken by one of the plaintiff's salesmen, had been received by the defendant, but had been returned upon receipt of an invoice stating the price at $360. The plaintiff refused to accept the return, and brought suit. The defendant answered a general denial, payment, and that the plaintiff's agent had represented the price at a certain figure, in reliance upon which the defendant had given the order for two thousand pounds, but on discovery that a figure was charged greatly in excess of ‘the representation and warranty,’ the defendant, fraudulently induced to purchase by the agent's misrepresentation, had informed the plaintiff, returned the goods and rescinded the contract.

The reported evidence shows that there was sharp contradiction in regard to the purchase; the defendant testifying that he thought he was buying ‘California Stucco’; the agent, that nothing but ‘Duralith’ was spoken of. The principal discussion at the sale was over the price per pound, which the agent testified and the order signed by the defendant showed was $.18. A price list of ‘Duralith,’ which the agent testified was given the defendant before the sale showed prices ranging from $.25 per pound in lots of not less than 50 pounds to $.17 in lots of not less than ten tons, f. o. b. New York, with a rebate in certain cases. The defendant was to have a rebate of $.02 per pound if he ordered three tons. This agreement was minuted upon the order when signed. Witnesses for defendant testified that they knew nothing of ‘Duralith’; but ‘California Stucco’ was known to them, and cost $1.75 per bag of one hundred pounds. The defendant testified that he did not read the order signed by him. It is not open to him, therefore, to claim that he was misled by any expression in it or by its form. At the close of the testimony he made ten requests for rulings, only one of which was given. The judge noted his decision on the several requests and found for the plaintiff on the declaration, making, at the same time, this special finding: ‘I find the defendant signed the order understanding it to call for 1 ton in all at $360 or $1.80 a bag-and later refused because he changed his mind.’

The defendant claimed to be aggrieved by the rulings and refusals to rule as requested, by the special finding, and by the decision finding for the plaintiff on the declaration. Before the appellate division he waived all except the refusal to give his first two requests and his objections to the special and general findings. The requests...