Interstate Grocer Co. v. George Wm. Bentley Co.

• Decision Date: 25 March 1913
• Citation: 214 Mass. 227,101 N.E. 147
• Parties: INTERSTATE GROCER CO. v. GEORGE WM. BENTLEY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 227

101 N.E. 147

INTERSTATE GROCER CO. v. GEORGE WM. BENTLEY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 25, 1913

SYLLABUS

The judge's charge below and the instructions requested for defendant were as follows:

At the close of the evidence and before the arguments, the defendant requested the court to make the following rulings of law:

'(1) That upon all the evidence the plaintiff cannot recover.

'(2) That upon all the evidence the plaintiff cannot recover, as it appears that the defect in these goods, if any, was a latent defect, and that the defendant was not the manufacturer or packer of the goods, and there is therefore no implied warranty of quality.

'(3) That the defendant was merely a pledgee of the goods, and as against him there was no implied warrant of quality, and therefore upon all the evidence the plaintiff cannot recover.'

The court declined to give the rulings requested, or the substance thereof, and the defendant duly alleged its exception. The defendant thereupon requested the court to give, among others, the following instructions to the jury:

'(5) If the jury find that the defendant was a pledgee of the sardines in question, then there was no implied warranty on the defendant's part as to the quality of the sardines, and the plaintiff cannot recover.

'(6) It the jury find that the defendant was a pledgee of the sardines in question, then there was no implied warranty on the defendant's part as to fitness for any particular purpose.

'(7) If the jury find that the defendant was not the manufacturer or canner of the sardines in question, and that the defect, if any, was a latent defect, then there was no implied warranty by the defendant as to the quality of the sardines, and the plaintiff cannot recover.

'(8) If the jury find that the defendant was not the manufacturer or canner of the sardines in question, and that the defect, if any, was a latent defect, then there was no implied warranty by the defendant as to fitness for any particular purpose.

'(9) The burden of proof is on the plaintiff to satisfy the jury that the defects, if any, in these sardines, were not caused by the plaintiff's own failure to properly care for them after they were received.

'(10) The burden of proof is on the plaintiff to satisfy the jury that the defects, if any, in these sardines, were not the result of some cause which operated after the plaintiff received the sardines.'

The court refused to give these instructions, or the substance of them, except as below shown, and to this refusal the defendant duly alleged its exception.

The following are the instructions of the court to the jury:

'Mr. Foreman and Gentlemen: This is a suit brought by the plaintiff, the Interstate Grocer Company, against the Bentley Company, alleging that the plaintiff purchased certain sardines from the defendant company, and that the implied warranty that the goods were merchantable, fit for food, has been broken, and that the plaintiff is entitled to recover his damages because of that breach.

'The warranty as alleged is that the sardines were sound, well-packed and merchantable, but the same, when sold and delivered to them, plaintiff says, were not so sound, well-packed and merchantable.

'Gentlemen, the first thing to inquire is: What was the warranty in this case? What was the warranty? And it appears that an order was given to certain brokers for certain fish described as one-quarter oil sardines and three-quarter mustard sardines, or something of that sort, and that nothing was said about quality in the order that was given to Maddocks and nothing was said about the quality in any letter which Bentley Company wrote and sent accepting that order. So that we are left to the question what obligation the law imposes on the seller when goods are offered in that way. And the law imposes upon the seller where there is no opportunity for an inspection before the sale, where as in this case, the order was sent out at arm's length from somewhere in the West to somewhere in the East for a certain number of cases of sardines--the law imposes what is called an implied warranty, that the goods, if it is food, that the article is fit for use as a food, and if it is merchandise, as this was, that it is merchantable, that the goods sold are merchantable; and what we mean by that is that they were salable at the time when they were sold to this plaintiff. That is the obligation, and the extent of the obligation, which rested upon the seller of these goods. If the Grocer Company wanted any further warranty than that, they should have called for it--called for an express warranty. All they got was the warranty--obligation that the law imposes upon the seller of such goods.

'Now, what do we mean when we say that the goods are fit for food? Why, if a man is selling bananas under this obligation that they should be fit for food, he does not incur any obligation that they should keep for three months in hot weather. The obligation is simply that they are fit for food at the time when they are sold, and 'merchantable' means that the goods are salable at some price in the market at the time when the goods are delivered to the buyer. That is the extent of the obligation resting on the sellers in this case.

'If you find that that obligation was broken, then you come to the other question which is in dispute here, which will be simply a question for you to determine what the damages are; and the rule of damages in such a case is the difference in value between the thing as it would have been if it had been as warranted--if it had been merchantable--and the value of the thing which was actually obtained.

'Now, it is objected by the defendant that it was not until long after the sale took place that any objection was made, and then, when a request was made to send back all the 'swells,' or whatever the expression was, 'swells' and 'rusty'----

'Mr. Ernst: Rusty cans.

'The Court: I don't remember the date of that letter.

'Mr. Ernst: June 1st.

'The Court: June--that a very samall portion of these fish were sent back, but that the great bulk of the articles were retained, and that there is strong ground for assuming--when they had an opportunity to send back all that they could obtain--they had at the time--the argument is, the fact that they retained the rest after having had opportunity to inspect is ground for assuming that the rest at that time were considered by them salable.

'[Now the other question in the case is whether this Bentley Company is the proper person to sue in this case, because it is contended that if anybody is liable for this breach of warranty it is Maddocks. Well, of course, that question depends upon the other question: Who were the contracting parties? Who sold these goods to the Grocer Company? Did Maddocks sell them to the Grocer Company, or did Bentley sell them to the Grocer Company? Well, it appears upon the undisputed evidence that they were packed by Maddocks; that the order was sent in to Maddocks by some broker; that that order was then sent to Bentley; that at that time, under an arrangement made between Bentley and Maddocks, these goods were in a warehouse and Bentley held the warehouse receipt; and that, as you know, gentlemen, the warehouse receipts are evidences of title, in Bentley; that Bentley wrote---- (To counsel): Have you that letter where I can see it?

'Mr. Smith: The very first one. (Hands letter to court, who reads the letter to the jury.)

'The Court: That subsequently the goods were shipped to the Grocer Company, that a bill for those goods was rendered by the Bentley Company, and that the money was paid to the Bentley Company for those goods.

'Now, on those facts, gentlemen, you are warranted in finding--I do not say you are bound to find it--but you are warranted in finding that the Bentley Company and the Grocer Company were the contracting parties in this case, and the person to be sued for breach of any warranty, if there was any breach of warranty, was the Bentley Company.]'

To the portion of the above charge enclosed in brackets, the defendant duly alleged its exception.

COUNSEL

Young, Hill, Ludden & Marks, of Boston, for plaintiff.

Roger Ernst, of Boston, for defendant.

OPINION

RUGG C.J.

This is an action of contract to recover damages for an alleged breach of an implied condition or warranty that certain canned sardines purchased by the plaintiff were merchantable. The plaintiff was a wholesale grocer in Missouri. In the summer of 1907 it placed an order with brokers in Missouri for five hundred cases of '1/4 oil sardines and 200 cases of 3/4 mustard sardines.' The broker sent the order to the Maddocks Packing Company, a corporation engaged in the business of packing sardines in Maine. That company had an arrangement with the defendant whereby it placed sardines as fast as packed in storage in a Portland warehouse, taking warehouse receipts in the defendant's name. The defendant upon delivery to it of the warehouse receipts advanced to the packing company a percentage of the value of the stored goods upon which advancements the company paid interest. Orders received by the packing company for sardines were referred to the defendant for approval, and the proceeds of goods which were shipped from those on storage were paid to the defendant. On receipt of the plaintiff's order the packing company wrote to the defendant, with a request for shipping orders, so that the goods might be sent the following week. Thereupon the defendant wrote to the plaintiff as follows:

'George William Bentley Company, Manufacturers Agents, and Commission Merchants, 192 & 194 State Street.

'Boston, Nov. 29, 1907.

'Interstate Gro. Co.,...