Leonard v. Carleton & Hovey Co.

• Decision Date: 25 May 1918
• Citation: 119 N.E. 674,230 Mass. 262
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LEONARD et al. v. CARLETON & HOVEY CO.

230 Mass. 262

119 N.E. 674

LEONARD et al.

v.CARLETON & HOVEY CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1918.

Exceptions from Superior Court, Middlesex County; James H. Sisk, Judge.

Action of contract by George H. Leonard and others against the Carleton & Hovey Company, to recover for certain lots of oil sold defendant. Finding for plaintiffs, and defendant excepts. Exceptions overruled.

Defendant was the manufacturer of a partent medicine and plaintiff in contracts referred to in the opinion agreed to furnish a certain quantity of ‘cold pressed provincial medicine oil,’ and also certain quantities of ‘pure medicinal cod liver oil.’ It was alleged that the oil was furnished in quantities and quality as agreed. Defendant in its twenty-second request asked the court to rule that it was under no obligation to take or pay for oil which was not merchantable under the description of ‘medicinal cod liver oil.’ In its twenty-fifth request the court was asked to rule that defendant was under no obligation to receive or pay for any oil of which dog fish liver oil formed a constituent part, and in its twenty-seventh request it asked the court to rule that defendant was under no obligation to receive or pay for any oil which by reason of defects in pressing, packing or storing was not fairly merchantable as pure medicinal cod liver oil. These requests the court gave.

1. SALES k261(3)-WARRANTY.

The terms ‘cold pressed provincial medicine oil,’ and ‘pure medicinal cod liver oil,’ used in contracts for the sale of such oil, being descriptive of the kind and quality, were words of warranty.

2. SALES k343, 344-REMEDIES OF SELLER-BUYER'S REFUSAL.

If oil delivered to the buyer conformed to the terms of the contracts of sale, the title, as between the parties, passed to the buyer, and its refusal of performance entitled the sellers to the price.

3. SALES k261(3)-SALE OF COD LIVER OIL-TERRITORIAL WARRANTY-‘PROVINCIAL.’

Where cold pressed provincial oil and pure medicinal cod liver oil, contracted to be sold, were known to the trade and in the market as mercantile provincial or domestic oil made from the fresh livers of the cod and kindred fish, such as pollock, hake, and haddock, as distinguished from Norwegian oil and Newfoundland oil, extracted from the liver of the cod, known respectively as first and second class oils, the word ‘provincial’ never became a territorial warranty but was merely descriptive of the class of oil, and had the same commercial signification as the word ‘domestic.’

B. G. Dodge and F. W. Johnson, both of Boston, for plaintiffs.

Whipple, Sears & Ogden, of Boston (Hugh W. Ogden, Wm. R. Sears, and Arthur M. Boal, all of Boston, of counsel), for defendant.

BRALEY, J.

[1][2][3] If the plaintiffs can recover, the defendant does not question the amount, nor the computation of damages as awarded by the trial court. But it contends that its liability has not been established. The terms used in the third and fourth contracts of sale over which the principal controversy has arisen, namely, ‘cold pressed provincial medicine oil’ and ‘pure medicinal cod liver oil’ being descriptive of the kind and quality, undoubtedly are words of warranty. Fullam v. Wright & Colton Wire Cloth Co., 196 Mass. 474, 82 N. E. 711. And the question for decision is whether the oil delivered corresponded to the warranty. It appears that while they did not carry the refined oil in stock, the presiding judge who tried the case without a jury could find, that after submitting a sample of the crude oil to the defendant, and upon its acceptance, the plaintiffs procured from producers at various places along the...