Leavitt v. Fiberloid Co.

• Citation: 82 N.E. 682,196 Mass. 440
• Parties: LEAVITT v. FIBERLOID CO.
• Decision Date: 26 November 1907
• Court: United States State Supreme Judicial Court of Massachusetts

196 Mass. 440

82 N.E. 682

LEAVITT v. FIBERLOID CO.

Supreme Judicial Court of Massachusetts, Essex.

November 26, 1907

COUNSEL

Arthur Withington and R. E. Burke, for plaintiff.

John H Casey, N. N. Jones, and Ernest Foss, for defendant.

OPINION

RUGG J.

The declaration contains two counts. The first count is in tort and alleges that the defendant sold to the plaintiff certain comb stock known as 'fiberloid,' which it had negligently manufactured, whereby fire ensued while the stock was being used in the ordinary way, causing damage to the property of the plaintiff. The second count is in contract and alleges that the plaintiff purchased of the defendant who was the manufacturer, fiberloid stock, respecting which the defendant made certain warranties, and that by reason of the stock not being as warranted it took fire, and caused the plaintiff damage.

There was evidence tending to show that the defendant manufactured a substance used for making combs, called in the trade 'fiberloid,' which both parties knew to be a highly inflammable material. The plaintiff was an experienced manufacturer of combs from this substance, and had bought such stock from the defendant for about three years. In January, 1905, certain stock was bought by the plaintiff of the defendant, which in manufacture worked badly, by blistering and igniting and later, but prior to March, 1905, an agent of the defendant said to the plaintiff, after the latter had made complaint of stock previously furnished, but not at the time any order for stock was given, that in the future 'the stock would be all right, he would guarantee it to be all right.' On October 13, 1905, after intervening purchases, the plaintiff ordered by mail certain stock of the defendant, a sheet of which, when put in process of manufacture in the ordinary way, caught fire, and caused the damage to other property of the plaintiff. In the superior court a verdict was directed for the defendant upon the count in tort, and the case was submitted to the jury upon the count upon certain warranties, with instructions to the jury upon the count upon certain warranties, with instructions that the measure of damage was the difference in value of the goods, which the plaintiff ought to have had, and what he did in fact get, and that damage caused to other property of the plaintiff by the ignition of the sheet of fiberloid must be left out of consideration.

1. The verdict for the defendant upon the count in tort was rightly ordered. The defendant was the manufacturer of the goods sold, and they were purchased by the plaintiff in the ordinary course of trade. The order of the plaintiff was for '1 sheet No. 60 shell' fiberloid, and he testified, 'I got just what I ordered.' The only testimony as to the bad quality of the sheet of fiberloid was of the plaintiff that it caught fire when subjected to the usual temperature for working the material into combs. There was no evidence tending to show knowledge on the part of the defendant of an imperfection in this particular stock, or that it would catch fire at any lower temperature than that at which such material would ordinarily ignite. There was affirmative testimony to the effect that it was manufactured in the ordinary way, and that all the precautions, as to washing and otherwise, rendering it as safe for use as was consistent with its nature, were employed in the processes. Under these circumstances, the mere happening of an accident in the use of the stock is not sufficient to make out a case of negligence on the part of the defendant. Gould v. Slater Woolen Co., 147 Mass. 315, 17 N.E. 531; Standard Oil Co. v. Murray, 119 F. 572, 57 C. C. A. 1. Both parties were aware that they were dealing with a highly inflammable substance. The duty bore upon the plaintiff as hard as upon the defendant to act with reference to this knowledge. The case is different where the manufacturer or seller is in possession of information not known or communicated to the purchaser. An obligation rests upon the one who delivers an article, which he knows, or ought to know, to be peculiarly dangerous, to give notice of its character or bear the natural consequences of his failure to do so. Wellington v. Downer Kerosene Oil Co., 104 Mass. 64; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Provost v. Cook, 184 Mass. 315, 68 N.E. 336; Huset v. Case Threshing Machine Co., 120 F. 865, 57 C. C. A. 237, 61 L. R. A. 303. There is lacking in the plaintiff's case the essential element of knowledge on the part of the defendant of the particular danger of which complaint is made, or of facts from which such knowledge might fairly be inferred, and there is present the element of knowledge by the plaintiff of a hazard in the use of the goods, of the same general character as that of which he complains, namely, an inherent tendency to take fire. See Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N.E. 482.

2. There was sufficient evidence to support a finding that there was an express warranty by the authorized agent of the defendant. The conversation, from which this might be inferred, occurred between January 2d and March 18th. The agent of the defendant said to the plaintiff, he 'would see the stock was all right, he would guarantee it would be all right.' Although no purchase was made at this time, it may fairly have been contemplated by the parties that this was a continuing offer of guarantee, and that whatever goods within a reasonable time were bought by the plaintiff of the defendant upon the strength of the statement would be protected by it. The parties had been discussing some goods purchased recently before by the plaintiff from the defendant, which had caught fire or blistered. It was in view of those past events that the statement was made. Its reasonable effect was to reassure the plaintiff that in the future there would be no similar trouble. It is not necessary that the giving of the warranty should be simultaneous with the sale. It is enough if it is made under such circumstances as to warrant the inference that it enters into the contract as finally made. Nor is the fact that the alleged warranty was oral, while the order for and bill of parcels of the fiberloid, which caused the damage, were in writing, enough to exclude the conversation under the rule that a written contract cannot be varied by parol evidence. The letter and bill of parcels were not a formal contract of such dignity as necessarily to indicate that all previous negotiations were merged in them. The evidence as to the alleged guarantee was admissible. Drew v. Wiswall, 183 Mass. 554, 67 N.E. 666; Morton v. Clark, 181 Mass. 134, 63 N.E. 409; Durkin v. Cobleigh, 156 Mass. 108, 30 N. E., 474, 17 L. R. A. 270, 32 Am. St. Rep. 436; Atwater v. Clancy, 107 Mass. 369; Vincent v. Leland, 100 Mass. 432; Weston v. Boston & Maine Railroad, 190 Mass. 298, 76 N.E. 1050, 4 L. R. A. (N. S.) 569, 112 Am. St. Rep. 330; North Packing & Provision Co. v. Lynch, 194 Mass. ----, 81 N.E. 891; Lloyd v. Sturgeon Falls Pulp Co., 85 L. T. (K. B. D.) 162; De Lassalle v. Guilford (1901) 2 K. B. 215; Cowdy v. Thomas, 36 L. T. (Ex. D.) 22; Palmer v. Johnson, 13 Q. B. D. 351-357; Allen v. Pink, 4 M. & W. 140; Routledge v. Wothington Co., 119 N.Y. 592, 23 N.E. 1111; Perrine v. Cooley, 39 N. J. Law, 449.

Assuming that an express warranty be found to exist, it is necessary to determine the measure of damages to which the plaintiff is entitled. Upon any breach of contract, whether of warranty or otherwise, the defendant is liable for whatever damages follow as a natural consequence and the proximate result of his conduct, or which may reasonably be supposed to have been within the contemplation of the parties at the time the contract was made as a probable result of a breach of it. Goddard v. Barnard, 16 Gray, 205; Mowbray v. Merryweather (1895) 2 Q. B. 640; Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N.E. 657, 51 L. R. A. 781, 86 Am. St. Rep. 478. The principle is ancient and familiar. The only difficulty lies in its application. A review of some of the cases, wherein the natural and probable consequences of certain acts have been considered, will illumine the path upon the facts now presented. In Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N.E. 657, 51 L. R. A. 781, 86 Am. St. Rep. 478, there was a warranty by the manufacturer that an iron boiler would bear a pressure of 100 pounds to the square inch of surface. Upon breach of this warranty the plaintiff was held entitled to recover for compensation paid by the purchaser to its employés injured through an explosion of the boiler occurring by reason of a breach of the warranty. See, also, Rodgers v. Niles, 11 Ohio St. 48, 78 Am. Dec. 290; Sinker v. Kidder, 123 Ind. 528, 24 N.E. 341. In Manning v. Fitch, 138 Mass. 273, upon a breach of an agreement not to foreclose a mortgage upon a farm known by the defendant to be used by the plaintiff for the purpose of producing milk, the plaintiff was permitted to recover the money value of the farm to one engaged in that special business. In Fox v. Boston & Maine R. R., 148 Mass. 220, 19 N.E. 222, 1 L. R. A. 702, the plaintiff was permitted to recover as damages for breach of contract by the defendant to deliver apples to a connecting line, so that they would reach Bangor by a certain time, the loss occasioned by reason of a sudden drop in temperature. In Whitehead & Atherton v. Ryder, 137 Mass. 366, 31 N.E. 736, on breach of an express warranty that a machine made by an English manufacturer would be fit for peculiar work in this country, the plaintiff was permitted to recover the expenses incurred in a reasonable but unsuccessful attempt to adapt the machine to the purposes for which it was constructed. In ...