General Office Products Corp. v. M.R. Berlin Co., Inc., 84-1530

• Decision Date: 07 December 1984
• Docket Number: No. 84-1530,84-1530
• Citation: 750 F.2d 1
• Parties: GENERAL OFFICE PRODUCTS CORP., Plaintiff, Appellant, v. M.R. BERLIN CO., INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

750 F.2d 1

GENERAL OFFICE PRODUCTS CORP., Plaintiff, Appellant, v. M.R. BERLIN CO., INC., Defendant, Appellee.

No. 84-1530.

United States Court of Appeals First Circuit.

Argued Nov. 9, 1984.

Decided Dec. 7, 1984.

Philip E. Roberts, Hato Rey, P.R., for plaintiff, appellant.

Marcos Rodriguez-Ema, San Juan, P.R., with whom Brown, Newsom & Cordova, San Juan, P.R., was on brief for defendant, appellee.

Before BOWNES, Circuit Judge, McGOWAN, ^* Senior Circuit Judge, and BREVER, Circuit Judge.

BOWNES, Circuit Judge.

This is a breach of contract diversity action. Plaintiff-appellant, General Office Products Corp. (General), appeals from a grant of summary judgment to defendant-appellee, M.R. Berlin Co., Inc. (Berlin).

The relevant facts can be stated briefly. General, a Puerto Rico company, purchased 20,000 pounds of tinplate from Berlin in Baltimore, Maryland. The order was subsequently shipped to Puerto Rico and stored without being opened or inspected in General's warehouse for more than thirty days. After examining the tinplate, General claims that it found some of it rusty and that a subsequent analysis showed that the tinplate was not of the type and quality ordered. Suit was brought.

In its answer, Berlin pleaded two Puerto Rico statutes of limitations as bars. Article 254 of the Puerto Rico Commerce Code, P.R.Laws Ann. tit. 10, Sec. 1712, provides in pertinent part: "A purchaser shall have a right of action against vendor for defects in the quantity or quality of merchandise received in bales or packages, provided he brings his action within the four days following its receipt." Article 260 of the Code, P.R.Laws Ann. tit. 10, Sec. 1718 provides: "A purchaser who has not made any claim based on the inherent defects in the article sold, within the thirty days following its delivery, shall lose all rights of action against the vendor for such defects." Berlin moved for summary judgment on the grounds that either or both statutes barred General's suit.

General's answer to the motion for summary judgment was that neither Article 254 nor Article 260 applied because this was a sale by sample and, under Puerto Rico law, the statute of limitations for such a sale is fifteen years. Article 245 of the Code, P.R.Laws Ann. tit. 10, Sec. 1703, which covers a sale by sample provides in pertinent part:

If a sale is made by samples or by fixed quality known to commerce, the purchaser shall not refuse to receive the goods contracted for, provided they conform to the sample or to the quality previously stated in the contract.

In case the purchaser refuses to receive said goods, experts shall be appointed by the parties, and said experts shall decide as to whether or not the goods are receivable.

The issue is whether the district court erred in finding on the basis of affidavits filed on the summary judgment motion that there was not a sale by sample.

In reviewing a grant of summary judgment, we must view the record in the light most favorable to the party opposing the motion, and indulge all inferences favorable to that party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Stephanischen v. Merchants Despatch Transportation Co., 722 F.2d 922, 928 (1st Cir.1983).

We agree with the district court's definition of a sale by sample:

A sale by sample is where a small quantity of any commodity is exhibited by the vendor as a fair specimen of a larger quantity, called the bulk, which is not present, and there is no opportunity for a personal examination. To constitute such sale, it must appear that the parties contracted solely with reference to the sample, and mutually understood that they were so dealing in regard to the quality of the bulk.

Reynolds v. Palmer, 21 Fed. 433, 435 (Circuit Court, W.D.N.C.1884).

We think, however, that an affidavit filed by General raised an issue of material fact as to whether the tinplate was sold by sample. Julio Garriga Martinez, president of General, filed the following affidavit.

1. In the middle of April, 1983 I visited Baltimore Tinplate, a division of defendant, at its plant at Baltimore, Md. for the purpose of inquiring about purchasing tinplate to be used by General for the manufacture and sale of metal fasteners in Puerto Rico.

2. Prior to visiting Baltimore Tinplate, I had purchased a box of ACCO metal fasteners in order to show Baltimore Tinplate exactly the type of tinplate General wished to purchase.

a) Annexed hereto as exhibit "1" is an identical sample of what I had bought to show Baltimore Tinplate.

3. At Baltimore...