Gosline v. Prince Macaroni Mfg. Co.

• Decision Date: 19 June 1922
• Citation: 241 Mass. 550,135 N.E. 686
• Parties: GOSLINE v. PRINCE MACARONI MFG. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 550

135 N.E. 686

GOSLINE

v.PRINCE MACARONI MFG. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 19, 1922.

Exceptions from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.

Action by Daniel P. Gosline against the Prince Macaroni Manufacturing Company for damages for alleged breach of contract. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

The contract was for the installation in defendant's factory of a system for curing macaroni and required defendnat to make required connections. The system was to be removed unless it proved satisfactory upon a test, and it was understood that the test was to be made during cold weather. Each party charged the other with responsibility for delays during the winter following the making of the contract; plaintiff claiming that defendant never made the necessary connections, and defendant that the delay was due to plaintiff's fault and that a test was actually made which proved the system unsatisfactory. It was finally agreed to test the system the following winter, but again there were delays, and the test was not made. Defendant asked a ruling that there was no evidence warranting a finding for plaintiff, and requested a directed verdict for defendant, and excepted to the court's refusal to withdraw the case from the jury.W. B. Grant and E. S. Fernald, both of Boston, for plaintiff.

Joseph T. Zottoli, of Boston, for defendant.

CROSBY, J.

This is an action to recover damages for breach of a written contract for the installation in the defendant's factory of a patented machine, called an ‘ebulator’ or ‘ebulator system,’ to cure macaroni with economy in operation. The machine was invented and manufactured by the plaintiff. There was evidence that an ebulator had been used in factories of different kinds-in textile mills, cigar and tobacco factories, in sole leather, candy and film rooms, art museums and places where a dry or moist air, or warm or cold temperature is required-it being claimed by the plaintiff that by the use of the system any desired degree of temperature or moisture required in a room can be produced and maintained.

The contract provides that the plaintiff will put in at his own expense a trial installation of the system in a room in the defendant's macaroni factory, then under construction on Commercial street in Boston; that the defendant ‘is to make the required connections under the instructions of the party of the first part.’ There was evidence that to install the system certain connections including water, electricity, heating and draining were required to be made. The contract further provides that, if in the room where the trial installation is to be made good macaroni is produced with economy in operation, the system should then be installed in the remaining ten rooms on that floor, at a certain price; that--

‘It being also understood and agreed that since no refrigerating apparatus is to be furnished the performance of either installation is to be judged during the cold weather as refrigerating apparatus is positively necessary for the hot dog day weather to produce right results. * * * It is agreed by the party of the first part that he shall start the trial installation within one month after the date of the signing of this contract, and further shall proceed with the complete installation as fast as possible after the same shall be commenced, but shall not be held liable for delays brought about by conditions over which said party has no control.’

The only question of law before us is whether the presiding judge erred in refusing to direct a verdict for the defendant. All the material evidence is recited in the record. The contract is dated November 8, 1917. There was evidence that on November 23, 1917, the plaintiff began work on the machine which...