Frick Co. v. New England Insulation Co.

• Decision Date: 08 May 1964
• Citation: 198 N.E.2d 433,347 Mass. 461
• Parties: FRICK COMPANY v. NEW ENGLAND INSULATION CO. NEW ENGLAND INSULATION CO. v. FRICK COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 433

198 N.E.2d 433

347 Mass. 461

FRICK COMPANY v. NEW ENGLAND INSULATION CO.

NEW ENGLAND INSULATION CO. v. FRICK COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 3, 1963.

Decided May 8, 1964.

Clyde G. Patten, for Frick Co.

Irvin M. Davis, Wellesley Hills (Peter F. Davis, Boston, with him) for New England Insulation Co.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and SPIEGEL, Jj.

WHITTEMORE, Justice

These are cross actions, tried together, arising out of contracts made in 1958 for the sale by Frick Company (Frick) to New England Insulation Co. (Insulation) of refrigeration machinery and apparatus and its installation by Frick in Insulation's plant in the city of Lawrence.

Frick sued Insulation for a balance of $77,679.60 and interest due under written contracts or on a series of notes given pursuant thereto. The jury found for Insulation in this action.

Insulation had verdicts on five of the counts in its action but was awarded no damages on the three counts next described. Count 1 alleged breach of contract to engineer, select, and specify a blast freezer for installation in Insulation's plant capable of freezing 200,000 pounds of beef a day on a continuous basis. Count 6 was for breach of contracts to install equipment and machinery. Count 9 was for breach of a contract alleged to have been made when Insulation signed completion certificates in consideration of Frick agreeing to do whatever was necessary to give the installed plant the capacity to freeze 200,000 pounds of beef a day. Insulation had a verdict of $812 on count 8, also for breach of contract. That count averred that in consideration of Insulation's having executed in advance the promissory notes called for by the written contract on which Frick had declared, Frick modified its undertakings to include installation of a plant of 200,000 pounds a day capacity. Under count 10 the jury awarded Insulation $3,458.88 on an account annexed for equipment furnished by Insulation to Frick and for an ammonia pump installed by Insulation at a later time. The judge ordered verdicts for Frick on the remaining counts (2, 3, 4, 5, and 7) of Insulation's declaration.

The actions are before us on Frick's exceptions.

Frick contends in support of its exceptions that there was error in the following: (1) The admission of testimony as to the negotiations and discussions preliminary to and in the course of the signing and delivery of the written contracts. (2) The admission of a bill from Frick to Insulation without proof of authenticity. (3) and (4) The denial of Frick's motions for directed verdicts on counts 8 and 10. Frick contends, as to (1), that the parol evidence rule barred the testimony. Insulation has argued the effect of the parol evidence rule and also the issue of the authority of Frick's agent.

Frick also excepted to the denial of its motions for directed verdicts under counts 1, 6, and 9 of Insulation's declaration and to the denial of its motion for a directed verdict for the plaintiff in its action against Insulation. Frick excepted to a portion of the judge's charge and to the denial of motions for a new trial of each action. Although Frick's brief does not expressly deal with the exceptions referred to in this paragraph, we consider these exceptions in relation to the exceptions argued. See Rule 13 of the Rules for the Regulation of Practice before the Full Court (1952), as amended, 345 Mass. 787.

The jury could have found these facts: Insulation's negotiations were with Ralph S. Ziehmn, the Boston district manager for Frick, who was authorized to do and did engineering work for Frick. 'Preliminary engineering * * * was part of his job.' Frick 'rarely offers independent engineering service, separate and apart from the sale of a machine.' Ziehmn had died prior to the trial. Insulation's president, Authur C. Swanson, told Ziehmn that Insulation had the problem of freezing 200,000 pounds of boned beef every twenty-four hours on a continuous basis and asked if Frick was qualified to handle it. Ziehmn replied that Frick was qualified. Swanson said he wanted someone to assume the full responsibility and Ziehmn said he would accept it after seeing what was needed; there would be no charge for engineering services if Insulation purchased 'the equipment from us that we recommend.' There was further talk between Swanson and Ziehmn. Ziehmn submitted a bulletin issued by Frick that referred to the 'complete engineering service that goes with Frick air cooling units' and stated that '[t]rained refrigerating engineers advise you on every requirement of the installation, in advance.' Ziehmn submitted a 'plant survey' which stated that the 'product load' was 'freeze 200,000 pounds beef in 24 hours.'

On July 16, 1958, Swanson signed, in triplicate, the main contract on which Frick relies. It had been prepared by Ziehmn, was on Frick's printed form, and made no mention of an obligation to furnish equipment to freeze 200,000 pounds a day.

The contract recited that it superseded an earlier one and it provided for crediting against the total price of $107,476 the sum of $4,998.50 paid under the earlier contract. A portion of the balance was to be paid in two instalments, the second to be payable upon notice that Frick was ready to ship. The remaining sum, $70,800, was to be paid by twenty-four notes to be delivered when the first shipment was made.

The contract signed by Swanson provided that it was 'not binding until approved and accepted by Frick Company, at its Home Office.' Insulation on or in due course after August 11, 1958, received a letter from Ziehmn enclosing one of the originals of the July 16 document indorsed as accepted by Frick on August 2, 1958, but expressly subject to changes made in red ink. With the letter was a card to be signed by Insulation. The chief red ink change caused the contract to call for nine special cooling units, having a total basic rating of 90,000 B. T. U. per hour per degree instead of ten units with a total basic rating of 93,500 B. T. U. Noting the red ink changes, Swanson called Ziehmn to his office and referred to the changes saying that he did not care about the number of units. 'You are designing, engineering, [and] installing this plant to freeze 200,000 pounds in twenty-four hours, every twenty-four hours * * *. I am asking for no reduction in price. What I want is the result.' Swanson then signed the card. It read: 'This will acknowledge receipt of approved and accepted copy of contract with you for refrigerating equipment, as returned to us with your letter of August 11, 1958.' Swanson gave Ziehmn a check on that day for the amount then due under the contract and in due course made other payments called for by the contract. Swanson signed and delivered the twenty-four notes dated September 10, 1958. The equipment had not then been shipped.

There were two supplementary contracts: One dated August 6, 1958, for equipment to cost $7,584, and the other dated August 20, 1958, for equipment to cost $810.

The contract of July 16, 1958, the contract of August 6, 1958, and the superseded earlier contract, contained disclaimers of all express and implied warranties not contained therein, a notice that no agent had authority to alter the written contract, and a recital that the writing contained the entire contract. They provided also that any later agreement to supply additional equipment would be subject to their terms. The August 20, 1958, contract contained like provisions except for the disclaimer of warranties.

Each of these contracts contained one year warranties against defects in materials or workmanship. A warranty in the July 16, 1958, contract was that the equipment would have a capacity stated in engineering units. Both the July 16 and August 6, 1958, contracts contained provisions characterizing all warranties as collateral and providing that the seller should not be liable on the warranties if the buyer defaulted in payment. Damages for breach...