Lasher Co. v. La Berge

• Decision Date: 15 November 1926
• Citation: 135 A. 31
• Parties: LASHER CO. v. LA BERGE.
• Court: Maine Supreme Court

135 A. 31

LASHER CO.

v. LA BERGE.

Supreme Judicial Court of Maine.

Nov. 15, 1926.

Exceptions from Superior Court, Androscoggin County, at Law.

Action by the Lasher Company against Laurent La Berge. From a directed verdict for plaintiff, defendant brings exceptions. Exceptions overruled.

Argued before WILSON, C. J., and PHILBROOK, DEASY, STURGIS, BARNES, and BASSETT, JJ.

George C. Wing, Jr., of Auburn, for plaintiff.

Louis J. Brann, of Lewlston, for defendant.

WILSON, C. J. An action to recover the balance due on a contract of conditional sale of an article, described in the contract as a "No. 110 Lasher freezer display case," with a count on a promissory note given in payment.

The contract of purchase was in the form of an order on a printed blank supplied by the plaintiff, sighed by the defendant, and accepted by the plaintiff. The note declared on was payable in monthly installments and contained the stipulation that, in case of failure to pay any one installment when due, the entire sum should immediately become due and payable.

The display case was delivered in December, 1924, and, after setting it up in his store, the defendant made two monthly payments on the note in addition to a payment made upon signing the order and one on the delivery of the case, as provided in the written contract.

On February 18, 1925, and again on February 25th, the defendant wrote the plaintiff refusing to make further payments and claiming that the display case was not as represented, and notifying the plaintiff that he rescinded the contract and that the display case would be placed in storage in Auburn, subject to the plaintiff's order.

In his brief statement, under the general issue, the defendant sets up a breach of a warranty that the display case would keep meats around and below the freezing point, and would be of a certain height and hold tubs of lard of a certain size; and he also claims recoupment because of a failure to comply with said representations, and also by reason of a total failure of consideration.

In the court below, after the evidence was in, the court directed a verdict for the plaintiff, and the case is here on exceptions to the ruling of the presiding justice.

The case was tried below on the issues of whether there was a failure of material representations as to its refrigerating qualities, its height, and capacity to hold articles of a certain size, and whether the defendant's attempted rescission was within a reasonable time. It is upon these points that defendant relies, under his bill of exceptions.

The exceptions must be overruled. The alleged representations of quality, height, and capacity were oral and made by the salesman of the plaintiff, if made at all. The order signed by the defendant, which became a contract upon its acceptance by the plaintiff, contained the express stipulation that it contained all the agreements between the parties, which was notice to the defendant that the salesmen had no authority to bind the plaintiff to or by any additional or collateral agreement or representations. If the defendant relied on...