Edgar v. Joseph Breck & Sons Corp.

• Decision Date: 01 March 1899
• Parties: EDGAR v. JOSEPH BRECK & SONS CORP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 581

52 N.E. 1083

EDGAR v. JOSEPH BRECK & SONS CORP.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1899

The plaintiff is a florist and grower of flowers. He bought of defendant, a dealer in seeds, a bill of lily bulbs amounting to $125. It is for a breach of warranty as to the kind of lily the bulbs would produce that this action is brought.

Anthony Leuthy testified that he is and he has been a florist 21 years. Has been growing lilies for 10 years to any extent. Has grown longiflorum, Harrisii, candidum, and callas. Sold his lilies in the Boston market as a grower. Sold lilies to the Boston market in the Easter season of 1894. Sold some Harrisii and some longiflorum. Fifteen dollars was the fair market value of longiflorum in the Easter season of 1894. Sold some Harrisii and some longiflorum. Knows the price paid for Harrisii by some other people. Has seen quotations. In his opinion, the market price of Harrisii was from $12 to $12.50 a hundred. The Harrisii lily bulb grows on the average one to two more marketable lilies than the longiflorum of the same size. "Q. I believe you bought some of these Harrisii lilies from Mr Edgar, didn't you? A. Yes, sir. Q. What price did you pay for them? (Objected to.) Mr. Ivy stated that he offered this as tending to show what the market value of Harrisii lilies was, as contradicting the plaintiff's testimony as to what the market value of the flowers was, and as going in reduction of the plaintiff's claim for damages. Maynard J.: Upon that I think it will be competent for you to ask this witness if he made this sale. It may go in simply for the purpose of contradicting. Q. Did you buy some of these Harrisii lilies from Mr. Edgar? A. Yes, sir. Q. What did you pay? Mr. Bartlett: One moment. I would like to know where. Maynard, J.: Of course, it must be in Boston. Q. Where did you buy them? A. Bought them at his store on Tremont street. Mr. Bartlett: Now, I object on another ground. Maynard, J That is, that he said he kept a retail store? Mr. Bartlett Yes, sir. Mr. Ivy: He may have sold them at wholesale. Maynard, J.: I do not know about that. You may inquire as to the quantity. Q. How many? A. Fifty. Q. Now I ask at what price? (Objected to.) Mr. Ivy: I will ask the witness this question, with the permission of the court: Q. Mr. Leuthy, is the sale of lilies to the number of fifty at a time a wholesale sale? A. I should say it is. Mr. Bartlett: I will object. Maynard, J.: I think I must exclude the whole question, and save you an exception if you desire. (Mr. Ivy saved an exception.) Mr. Ivy: I understand your honor excludes the answer as to whether that was a wholesale sale or not. Maynard, J.: Yes. Mr. Ivy: Your honor will save me an exception."

COUNSEL

C.W. Bartlett, E.R. Anderson, and Fred C. Allen, for plaintiff.

Jesse C. Ivy and Lowell, Smith & Lowell, for defendant.

OPINION

HOLMES J.

This is an action for breach of a warranty that certain lily bulbs sold by the defendant to the plaintiff were of the kind known as "longiflorum." The case has been tried, and is here on exceptions.

The first exception to be considered is to a refusal to direct a verdict for the defendant. The plaintiff testified that the manager of the defendant's seed department spoke to him about supplying him with bulbs for the following Easter; that the plaintiff asked about the lilies being true to name, and that the manager replied that he would supply him with those true to name, whereupon the plaintiff gave him the order. Afterwards the bulbs were sent, and turned out to be in great part of an inferior variety (Harrisii), of which the bulb is not distinguishable from the longiflorum.

The defendant objected that the foregoing facts do not show anything importing a warranty, and, whatever their import, are no evidence of a warranty, because the sale was executory, and that the plaintiff's only remedy on such a contract would be for failure to deliver the goods; that the agreement, when made, was within the statute of frauds, and did not become binding until the delivery of the bulbs, which were sent with a bill having a printed notice that the defendant sold no seeds with a warranty; and that there was no evidence of the agent's authority.

As to the first of these objections, we do not think it necessary to say more than that it was a question for the jury. With regard to that based upon the sale being executory, the answer is that, when an executory contract is made for the sale of a described article, the correspondence between which and the description cannot be ascertained until after acceptance, words which before are words of description may be found to operate as a warranty after the goods are accepted, and the sale is complete. It might work injustice to treat an essential term of the contract as performed or waived at a time when the purchaser still is...