Lalime & Partridge, Inc. v. Hobbs

• Decision Date: 01 March 1926
• Citation: 255 Mass. 189,151 N.E. 59
• Parties: LALIME & PARTRIDGE, Inc. v. HOBBS. HOBBS v. LALIME & PARTRIDGE, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 189

151 N.E. 59

LALIME & PARTRIDGE, Inc.

v.HOBBS.

HOBBS

v.LALIME & PARTRIDGE, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1926.

Report from Superior Court, Suffolk County; Marcus Morton, Judge.

Action of contract by Lalime & Partridge, Incorporated, against George R. Hobbs, to recover price of a tractor and accessories, parts and labor thereafter furnished by plaintiffs; and an action of contract or tort by George R. Hobbs against Lalime & Partridge, Incorporated, for breach of alleged warranty in sale of tractors. The cases were tried together. Verdict for the plaintiff in the first action, and verdict for plaintiff in the second action, and, at request of parties, cases were reported together to the full court. Judgment for plaintiff in each case on the verdict.

T. W. Proctor, of Boston, for Hobbs.

C. P. Houston, of Boston, for Lalime & Partridge, Inc.

BRALEY, J.

[3] The defendant in the first case not having argued his exceptions to the admission of evidence, they are treated as waived, and not having excepted to the order of a verdict for the plaintiff, no error of law is apparent on the record. In the second case the plaintiff, a manufacturer of boxes, bought of the defendant, hereafter called the company, a tractor to furnish power to operate his machinery. It is alleged that, the tractor upon trial being insufficient, he bought a second tractor, but when used in combination the tractors did not develop the power required. The counts in deceit having been waived, he claims under the counts in contract that the company expressly warranted each tractor as sufficient to do the work, and because of the result just stated he claims damages for breach, with an allegation of special damages for loss of prospective profits. The sales were negotiated by one Schroeder the company's salesman, and, while the evidence was conflicting, the jury would have been warranted in finding that as to the first tractor the plaintiff told him that he wanted power to run the shafting and that Schroeder replied that he would put in a tractor which he guaranteed would do the work. The plaintiff said ‘send it over.’ It was delivered, but the jury could find it failed to do the work. The plaintiff informed Schroeder of the result, who after an examination of the situation said:

‘There is too much load, put in another tractor, and the two will run away with it. * * * I will guarantee that it will run away with it.’

The plaintiff said ‘send it over.’ The second tractor was delivered but after trial at which Schroeder apparently was present, the jury also could find the tractors when used in combination failed to do the work. The plaintiff paid for both tractors. It was a question for the jury whether the plaintiff was induced to buy because of these affirmations of fact, and relied upon them. If so found, there was an express warranty of each tractor. Cavanaugh v. D. W. Ranlet Co., 118 N. E. 650, 229 Mass. 366;Ireland v. Louis K. Liggett Co., 137 N. E. 371, 243 Mass. 243, 246; Williston on Sales (2d Ed.) § 197; G. L. c. 106, § 14.

The contract for each tractor was entire on the record, and the paper writing referred to as an invoice which accompanied each delivery formed no part of it. The contracts were made when the parties entered into their oral agreements, and the invoices, so called, subsequently transmitted and received, did not as matter of law show a rescission, and the substitution of the invoices in whole or in part as a written contract. Picard v. Beers, 81 N. E. 246, 195 Mass. 419, 423, 428;Edgar v. Breck & Sons Corporation, 52 N. E. 1083, 172 Mass. 581, 582;Bennett v. Thomson, 126 N. E. 795, 235 Mass. 463, 467;Blanchard Lumber Co. v. Maher, 145 N. E. 62, 250 Mass. 159. See Glackin v. Bennett, 115 N. E. 490,266 Mass. 316, 323.

[6] While one Partridge, the president of the company, testified that even if Schroeder had authority to sell, he had no authority to warrant the tractors, the jury were not bound to believe him, but on all the evidence they could find there was no limitation on his ostensible powers of which the plaintiff had knowledge, and that in his dealings with the plaintiff such powers were his real powers. Danforth v. Chandler, 130 N. E. 105, 237 Mass. 518;Blanchard Lumber Co. v. Maher, 145 N. E. 62, 250 Mass. 159, 163. It moreover was in evidence, that at...